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")
- Arbitration
- Work from Home
- Workplace health
- Intellectual Property
- Trade Secrets
- Corporate
- Center for Disease Control
- Americans with Disabilities Act ("ADA")
- FFCRA
- Opioid Epidemic
- Occupational Safety and Health Administration (“OSHA”)
- COVID-19
- IRS
- Temporary Leave
- Treasury
- Coronavirus
- Families First Coronavirus Response Act
- H.R.6201
- Health Care Law
- Paid Sick Leave
- Worker Misclassification
- Labor Law
- Overtime
- Kentucky Unemployment Insurance Commission
- Sexual Harassment
- FMLA Retaliation
- Overtime Rule
- Employer Wellness Programs
- Employment Non-Discrimination Act ("ENDA")
- Genetic Information Nondiscrimination Act ("GINA")
- Kentucky minimum wage
- Minimum wage
- Paid Time Off ("PTO")
- Sick Employees
- Wage and Hour
- Employee Benefits
- Employment Discrimination Laws
- ERISA
- Fair Labor Standards Act (FLSA)
- Human Resource Department
- Independent Contractors
- Kentucky Civil Rights Act (“KCRA”)
- OSHA
- Overtime Pay
- Social Media
- Social Media Policies
- U.S. Department of Labor
- Union
- ADA Amendments Act of 2008 (“ADAAA”)
- Adverse Employment Action
- Amazon
- Americans with Disabilities Act
- Bring Your Own Device
- BYOD
- Civil Rights
- Compliance
- Department of Health and Human Services
- Department of Labor ("DOL")
- EEOC
- Employee Handbook
- Employee Misconduct
- Employment Law
- Family and Medical Leave Act (“FMLA”)
- National Labor Relations Act (NLRA)
- National Labor Relations Board (NLRB)
- Portal-to-Portal Act of 1947
- Pregnancy Discrimination Act
- Security Screening
- Title VII of the 1964 Civil Rights Act
- U.S. Equal Employment Opportunity Commission (“EEOC”)
- U.S. Supreme Court
- Uncategorized
- Volunteer
- Young v. UPS
- Federal contractors
- Kentucky Labor Cabinet’s Occupational Safety and Health Program (KOSH)
- Micro-unit
- Security Checks
- Specialty Healthcare & Rehabilitation Center of Mobile
- Cloud
- Creech v. Brown
- EEOC v. Hill Country Farms
- Equal Employment Opportunity Commission v. Kaplan Higher Education Corp.
- Lane v. Franks
- Mine Safety and Health Administration ("MSHA")
- Non-exempt employees
- Northwestern
- Shazor v. Prof’l Transit Mgmt.
- Web Content Accessibility Guidelines
- Whistleblower
- WorkSmart Kentucky
- "Ban-the-box"
- 2013)
- At-will employment
- Berrier v. Bizer
- Bullying
- Chapter 11 Bankruptcy
- Chenzira v. Cincinnati Children’s Hospital Medical Center
- Citizens United v. Federal Election Commission
- COBRA
- Companionship services
- Compensatory time off
- Conestoga Woods Specialties v. Sebelius
- Consumer Credit Protection Act (“CCPA”)
- Crystalline Silica
- Davis-Bacon and Related Acts
- Defense of Marriage Act (“DOMA”)
- Drug-Free Workplaces
- Earnings
- EEOC v. Fabricut
- EEOC v. The Founders Pavilion
- Ehling v. Monmouth-Ocean Hospital Service Corp.
- Federal Stored Communications Act (“SCA”)
- Giant Food LLC
- Government employees
- Government shutdown
- Health-Contingent Wellness Programs
- HIPAA
- Home Health Care Workers
- Illness and Injury Reports
- Job applications
- Jury duty
- Kentucky Department of Workers’ Claims
- Kentucky Wage and Hour Act
- KYSHRM 2013
- Mandatory vaccination policies
- Maternity Leave
- McNamara O’Hara Service Contract Act
- Medical Exams
- NFL Bullying Scandal
- Participatory Wellness Programs
- Payroll
- Pension Plans
- Permissible Exposure Level ("PEL")
- Private employers
- Sebelius v. Hobby Lobby Stores
- Senate Bill 157
- SHRM
- Small Business Administration (SBA)
- United States v. Windsor
- Violence
- Wage garnishment
- Contraceptive Mandate
- Defamation
- Employee Arrests
- Employee Forms
- Employee Hazards
- Employee of the Month Programs
- Employee photographs
- Employee Training
- Employer Group Health Plans
- Employer Mandate
- Employment Practices Liability Insurance
- Endorsements
- Federal Workplace Agencies
- FICA
- Form I-9
- Freedom of Speech
- Gatto v. United Airlines and allied Aviation Services
- House Labor and Industry Committee
- KRS 391.170
- Litigation
- Madry v. Gibraltar National Corporation
- Megivern v. Glacier Hills Incorporated
- Motivating Factor
- Obesity
- Online Account Protection
- Online Defamation
- Patient Protection and Affordable Care Act
- Pennington v. Wagner’s Pharmacy
- Play or Pay
- Posting Requirements
- Record Retention
- Reference checks
- Religious Employer
- Right to Work Bill
- Sequester
- Severance Pay
- Social Media Ownership
- Supervisor
- Supplemental Unemployment Compensation Benefits
- Tangible employment actions
- Tax Refund
- Telecommuting
- Title VII retaliation cases
- Troyer v. T.John.E Productions
- U.S. Citizenship and Immigration Services
- Unfair Labor Practice
- United States v. Quality Stores
- University of Texas Southwestern Medical Center v. Nassar
- Vance v. Ball State University
- White v. Baptist Memorial Health Care Corp.
- Crisis Management
- Job Description
- Job Requirement
- Kentucky’s Whistleblower Act
- Labor and Pensions ("HELP")
- Municipal Liability
- PhoneDog v. Kravitz
- Public Sector Liability
- Social Networking Online Protection Act (SNOP)
- Social Privacy Laws
- Strategic Enforcement Plan (SEP)
- Wilson v. City of Central City
- Workplace Politics
- Business Insurance
- Class Action Waivers
- Criminal Background Checks
- Employee Performance Reviews
- Employee Personnel Files
- Federal Arbitration Act (FAA)
- Federal Department of Labor
- Hiring and Firing
- Hosanna-Tabor Opinion
- Informal Discussion Letter (“EEOC Letter”)
- Insurance Coverage
- Kentucky Labor Cabinet
- National Labor Relations Act
- Retaliation by Association
- Salary Threshold
- Unemployment Benefits
- Workplace Discrimination, Harassment and Retaliation
- Communications Decency Act
- Employee Contracts
- Internet & Media Law
- Internet Defamation
- Non-Compete Agreement
- Uniformed Services Employment and Reemployment Rights Act
- USERRA
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.
