Assessing the Impact of Federal Entitlement Benefits on Employment

Lebau and Neuworth partner attorney Richard Neuworth recently made a new and important presentation on the topic of Federal Entitlement Benefits and how they affect employment law.

Those federal benefits that affect employment litigation are:

To view the presentation, click here.

The topic was timely because of the large numbers of older and disabled workers that left the work force due to COVID 19 since February 2002 through to the present. In fact, many such workers will have difficulty finding other employment.

The issues addressed in the presentation concern how entitlement benefits interface with employment law cases primarily dealing with age and disability discrimination; the Family and Medical Leave Act; health insurance; and causes of action available to Medicare recipients.

The presentation was designed to show how individuals could also keep the proceeds of settlements and/or judgments without jeopardizing federal benefits to which the former or present employee was legally entitled before filing legal actions against past and present employers.

The attorneys at Lebau & Neuworth are well experienced in litigating employee benefits issues. If you need advice, assistance and/or representation for and benefits issue, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Federal Contractor Employees have New Sex Discrimination Guidelines

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its Final Rule to update sex discrimination guidelines for federal government contractors. The Final Rule became effective on August 15, 2016, and protects employees of covered federal contractors and subcontractors from pay discrimination, sexual harassment, hostile work environment, lack of accommodations for pregnancy and childbirth, family caregiver discrimination and discrimination on the basis of gender identity or transgender status.

The Final Rule provides a list of "best practices" that a contractor may follow to foster a workplace that complies with OFCCP requirements. It also expands the definition of “sex” to expressly include “pregnancy, childbirth or related medical conditions; gender identity; transgender status; and sex stereotyping." A contractor may not make distinctions based on sex in recruiting, hiring, firing, promoting, compensation, hours, job assignments, training, benefits, or other terms, conditions, or privileges of employment (unless the contractor can meet the very high bar of demonstrating that sex is a “bona fide occupational qualification” of the position).

The Final Rule prohibits contractors from providing difference wages, benefits, other forms of compensation, or access to earning opportunities to similarly situated employees on the basis of sex. The determination of whether employees are “similarly situated” must be interpreted broadly and is case specific.

The Final Rule also prohibits discrimination in the provision of fringe benefits, such as medical, hospital, accident, and life insurance, retirement benefits, leave, and other terms, conditions and privileges of employment.

It forbids discriminatory treatments on the basis of pregnancy, childbirth or related medical conditions. Contractors may not refuse to hire pregnant women (or women of childbearing capacity), terminate employees or require them to take leave because of their pregnancy, and they may not limit job responsibilities solely because an employee is pregnant. Contractors also are forbidden from providing employees with health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth or related medical conditions. A reasonable accommodation (such as modified duty) cannot be denied because of an employee’s inability to perform the job duties because of pregnancy, childbirth or related medical conditions. Moreover, job-guaranteed medical leave (including paid sick leave) must be provided by contractors for pregnancy, childbirth or related medical conditions.

Family leave must be provided for male employees as well on the same terms that such leave is provided for female employees. 

The Final Rule provides that it is unlawful for a contractor to treat employees differently because they have received or plan to receive transition-related medical services. Contractors must allow employees to use restrooms, changing rooms, showers and similar facilities consistent with the gender with which employees identify.

Contractors are also prohibited from making employment decisions based on stereotypes about how they expect males or females to look, speak or act.

As for health coverage issues, the Final Rule requires contractors to ensure that coverage for healthcare services be made available on the same terms for all individuals for whom the services are medically appropriate, regardless of sex assigned at birth, gender identity or recorded gender.

If you have any questions or seek information about laws pertaining sex discrimination or any other types of employment discrimination, contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.

Employers Can’t Mislabel Their Workers “Independent Contractors”

Being an employee or independent contractor impacts that rights and duties of everyone involved. What is an independent contractor? Here's an example: A nail technician who works as an independent contractor does not have rights to protections provided to employees under law. These state and federal laws include the Fair Labor Standards Act (the U.S. minimum wage and overtime law), the Family Medical Leave Act, Americans for Disabilities Act, the Affordable Healthcare Act, and the list goes on. We here at Lebau & Neuworth, LLC concentrate in protecting employee rights laws.  We encounter employees who have been labeled “independent contractors,” so to not pay overtime, for instance, or not provide a person with disability leave. Employers try to pull 'fast ones' through mislabeling employees as independent contractors. Magic labels don’t work at court. Federal courts in Maryland, Virginia, and North and South Carolina and in most places consider whether someone is an employee, or independent contractor, under an “economic realities test,” and not according to labels. Campusano v. Lusitano Constr. LLC, 208 Md. App. 29, 36-40 (2012) (discussing the test in Maryland and nationally); see also Viar-Robinson v. Dudley Beauty Salon, No. PWG-12-1794, 2013 U.S. Dist. LEXIS 171383 (D. Md. Dec. 4, 2013) (for a recent Maryland example). In Vair-Robinson, for instance, a nail technician working with her own equipment split her fees with the salon in exchange for her spot, and also helped out occasionally when requested by the salon, and she was held to be an independent contractor, because the nail tech exercised general control over her own schedule, working conditions, and opportunity for earnings. In contrast in another recent case, erotic dancers at a nightclub were held to be employees and able to sue that night club for minimum and overtime wages because the club, despite calling the dancers “independent contractors,” controlled their working conditions and profit opportunities. Butler v. PP&G, Inc., No. WMN-13-430, 2013 U.S. Dist. LEXIS 159417, at 1-16 (D. Md. Nov. 7, 2013). The court held these dancers as employees, even though the dancers were asked by the club to choose their label, and chose to be independent contractors.  Id. at 15.  Basically, you cannot mislabel yourself or be forced to sign away your employee status under the law.  See id. at 15. The economic reality test is a six-factor test.  See Vair-Robinson, at 11.  It requires more detailed treatment than the summaries above. That being said, L&N has represented hundreds of employees who have been denied proper wages, overtime and employee benefits because of being misclassified as independent contractors. Contact us if you have questions.

Health Care Changes Coming for Employees in 2014

In 2014, millions of employees will have access to conceivably lower-cost health insurance through state-wide “marketplaces.” These health insurance marketplaces are being created under the Patient Protection and Affordable Care Act, otherwise known as ‘Obamacare’, which President Obama signed into law on March 23, 2010. If you are an employee and don’t know about it, well, you probably will soon. Starting on October 1, 2013, any employer covered by the Fair Labor Standards Act, the minimum wage and overtime wage law, will be mandated to provide all existing employees with notices about these new marketplaces. Department of Labor, Technical No. 2013-02 (May 8, 2013). Starting then, notices must be provided to all new hires. The Department of Labor has issued temporary guidance for employers and released model notices for distribution. Technical No. 2013-02. The Model Notices provide just basic information, and are not intended to be used beyond November 30 this year. The notices will be issued by employers that do offer health insurance as well as by those that do not. See Model Notices OMB 1210-0149. Part-time and full-time employees will receive these notices. Technical No. 2013-02. The marketplaces created by the Affordable Care Act cannot be easily summed up. States participate in creating them. For instance, Maryland already has named its marketplace Maryland Health Connection.   Marketplaces will begin to fully function in 2014. Two key points: Any employee can use these marketplaces, including those employees who just want to comparison shop. Part-time employees and lower-income employees may benefit most. A new tax credit applied to discount health insurance premiums, applied as premiums come due, will help lower-income working families obtain discounted health insurance coverage, according to the U.S. government Web site dedicated to the Act, Healthcare.gov. If you want to get a jump on these marketplace notices, you can begin with Healthcare.gov.  Employment laws sometimes change. Right now, health care is one employment area set to change in 2014.  Keep your eye on the ball and we’ll keep our eyes on the law.