Employment Law

Joint Employers Can Be Liable for Employee Misclassification in California

Why it matters

Liability under the California Labor Code extends to joint employers that are aware of a willful misclassification of an employee as an independent contractor, an appellate panel in the state has ruled, although the court added that no private right of action exists under the provision at issue. Anschutz Entertainment Group contracted with Levy Premium Foods to handle food and beverage services at venues such as the Staples Center and Citizens Arena. Levy also contracted with Canvas Corporation to provide workers to sell the food and drinks. A group of the workers filed suit against all three entities alleging multiple violations of the state Labor Code, requesting recovery under Section 226.8 for knowing misclassification of an employee as an independent contractor.

Anschutz and Levy filed motions for summary judgment, arguing that they could not be held liable because Canvas classified the workers. A trial court agreed. The appellate panel reached the same outcome but via a different analysis. Relying on the word “engage” in the statute, the court said the state’s legislature intended to hold not only the employer that classified the worker liable but also “intended to penalize a broader class of employers that includes those who, through their acts or omissions, have knowingly participated or involved themselves in the willful misclassification decision.” However, joint and several liability does not apply, the court said, and no private right of action exists under Section 226.8, leaving the plaintiffs unable to assert their claim. Employers in the state should be careful when contracting with third parties to ensure that the Labor Code is followed and avoid assuming that staffing companies or other entities are properly paying all workers.

Detailed discussion

Anschutz Entertainment Group (AEG) and related entities own several Southern California entertainment venues, including the Staples Center. To provide food and beverage services at each venue, AEG contracted with Levy Premium Foodservice. Levy in turn contracted with Canvas Corporation to provide vendors who sold the food and beverages to attendees at events.

In 2013, a group of former vendors hired by Canvas filed a wage and hour lawsuit against all three entities. The plaintiffs cited multiple violations of the California Labor Code as well as the Private Attorneys General Act.

The putative class requested recovery under Section 226.8, which provides civil penalties for employers who “engage in” the act of “voluntarily and knowingly misclassifying [an] individual as an independent contractor.”

AEG and Levy responded with a motion for summary judgment, arguing that they were not a “joint employer” and could not be held liable for any of the Labor Code violations found in the complaint because the statute applies only to the employer who actually made the decision as to how to classify the workers. The defendants told the court they had “limited oversight” and that the evidence showed Canvas was solely responsible for hiring and paying the plaintiffs, setting their schedules, and providing compensation, as well as the classification of the workers as independent contractors.

A trial court agreed. The plaintiffs appealed, asserting that triable issues of fact existed as to whether the defendants were joint employers of the vendors provided by Canvas. AEG and Levy exerted substantial control over the workers, the plaintiffs said, with contract terms dictating what they sold, the price it was sold at, and the appearance of the vendors. The statute imposed a duty on the defendants to ensure all of their employees were properly classified, the plaintiffs added.

Although the court agreed with the plaintiffs that liability under the statute extends to joint employers, it affirmed the trial court after finding that no private right of action exists under Section 226.8.

“We conclude that, contrary to the trial court’s interpretation, section 226.8 is not limited to employers who make the misclassification decision, but also extends to any employer who is aware that a co-employer has willfully misclassified their joint employees and fails to remedy the misclassification,” the panel wrote. “However, we further conclude that section 226.8 cannot be enforced through a direct private action.”

Section 226.8 states: “(a) It is unlawful for any person or employer to engage in any of the following activities: (1) Willful misclassification of an individual as an independent contractor,” with “willful misclassification” defined as “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”

“The statute therefore makes it unlawful for an employer to ‘engage in’ the act of ‘voluntarily and knowingly misclassifying [an] individual as an independent contractor,’” the court said. Finding that the term “engage” has a broad meaning (to “involve oneself; to take part in,” per Black’s Law Dictionary), the court said, “an individual or entity can ‘engage’ in an act without actually having ‘committed’ that act.”

“If the Legislature had only intended to penalize employers who made the misclassification decision it could have simply made it unlawful for an employer to willfully misclassify an individual as an independent contractor,” the panel wrote.

“Alternatively, it could have made it unlawful to commit the act of willful misclassification. By choosing to use words with a broader construction—prohibiting employers from ‘engaging in’ the act of willful misclassification—we presume the Legislature intended to penalize a broader class of employers that includes those who, through their acts or omissions, have knowingly participated or involved themselves in the willful misclassification decision. As applicable here, a joint employer who knowingly acquiesces in a co-joint employer’s decision to willfully misclassify their joint employees has necessarily ‘involved’ itself in that misclassification decision.”

This conclusion effectuates the law’s purpose and is consistent with the objective of the statutes, which were meant to act as a broad deterrent against the practice of employee misclassification, the court said.

“Interpreting section 226.8 to exclude employers who know their own employees have been misclassified by a joint employer, but choose not to address the situation, would conflict with the Legislature’s broad objectives,” the court added.

However, the panel placed some limitations on its ruling. An employer may not be held liable under Section 226.8 based solely on the acts of a co-employer, the court explained, as the statute requires that an employer has “engaged in” the act of misclassification.

“Merely employing workers who have been willfully misclassified by a co-employer is, standing alone, insufficient,” the court wrote. “Simply put, we fail to see how an employer could ‘engage in’ the act of voluntarily and knowingly misclassifying a joint employee without any knowledge that the employee has been misclassified.”

Other sections of the Labor Code demonstrate that when the Legislature intends to impose joint and several liability, it knows how to do it, the court said.

Applying these principles to the facts of the case, “if plaintiffs prove AEG and Levy were their joint employers, those defendants may be held liable under [the Labor Code] for any unpaid minimum wage and overtime compensation resulting from plaintiffs’ misclassification,” the panel said. “To obtain civil penalties under section 226.8, however, plaintiffs must demonstrate not only that AEG and Levy were joint employers, but also that, as set forth in this opinion, they each engaged in the act of voluntarily and knowingly misclassifying the plaintiffs. The mere fact that Canvas engaged in such conduct is insufficient.”

Further, Section 226.8 does not provide a private right of action, the court held. The statute contains no language indicating the Legislature intended to create such a right or collect the penalties set forth in the statute. Instead, the only specific language regarding enforcement of Section 226.8 appears in subdivision (g), which authorizes the Labor Commissioner to enforce the statute, either by issuing a citation to assess penalties or in a civil suit.

Because Section 226.8 does not provide a private right of action, the panel affirmed summary judgment on the plaintiff’s claim under the provision seeking to collect a civil penalty on behalf of each misclassified employee. In a footnote, the court added that nothing in its analysis precluded the plaintiffs from pursuing enforcement of Section 226.8 through their PAGA claim.

To read the opinion in Noe v. Superior Court, click here.

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California Lawmakers Keep Busy with Bills on Minimum Wage, Wage Gap, Sick Leave, and More

Why it matters

Legislators in California have been busy. Local municipalities have enacted bills increasing the minimum wage (up to $15 per hour by 2020 in Los Angeles, adding the city to the list of those at the top of the hourly rate) and providing paid sick leave (with Emeryville offering features over and above those found in the new state law). In the state legislature, lawmakers are considering a host of employment-related measures on topics ranging from broadening the protections offered by the California Family Rights Act to a requirement that employers pay women the same wages as their male counterparts to yet another hike in the state’s minimum wage.

Detailed discussion

Employment-related legislation has been an area of focus for both local and state lawmakers in California recently. Below are some of the new ordinances that have passed and major changes being considered.

  • In Los Angeles, the City Council approved an increase that will jump the city’s minimum wage from its current $9 per hour to $15 by 2020. Final approval of the ordinance—passed in a 12-to-1 vote—makes L.A. the largest city yet to reach the $15 mark, where it joins San Francisco, Chicago, and Seattle. The phase-in of the raise ($10.50 by July 1, 2016, moving up each year to $12, $13.25, $14.25, and ultimately $15) provides additional time to businesses with fewer than 25 employees, giving them an extra year for each increase. After 2020, the hourly rate will be adjusted upwards on an automatic basis, tied to the consumer price index. “The minimum wage will no longer be a poverty wage in Los Angeles,” the city’s mayor, Eric Garcetti, said in a statement about the ordinance.
  • Although California employees recently became entitled to sick leave, the Emeryville City Council (which also recently upped its minimum wage to $16 by 2020) passed a new ordinance providing protections over and above the state law, including time off to care for a seeing-eye or service dog. The measure covers employees of both for-profit and non-profit employers, as well as part-time and temporary workers. Employees may use their sick leave—which accumulates at up to 48 hours per year for employers with 55 or fewer employees and up to 72 hours each year for employers with more than 55 workers—to care for themselves as well as family members, defined broadly to include one designated non-family member.
  • In the state legislature, a bill that would bar employers from asking applicants about salary history—as well as prohibit the release of salary history for former and current employees—recently passed the Assembly. Specifically, the bill would prohibit an employer from “Orally or in writing, personally or through an agent, seek[ing] salary history information, including, but not limited to, compensation and benefits, from an applicant for employment for an interview or as a condition of employment,” as well as banning the “Release [of] the salary history of any current or former employee to any prospective employer in response to a request as part of an interview or hiring process without written authorization from the current or former employee.” A.B. 1017 would make violations of the law misdemeanor crimes. After the Assembly approved the measure in a 42-to-29 vote, it moved to the Senate for consideration.
  • A bill that would broaden the protections and rights for employees under the California Family Rights Act recently passed the Senate and moved to the Assembly. S.B. 406 would add additional family members to the list of individuals that employees can take paid leave to care for (including grandparents, grandchildren, siblings, parents-in-law, and children of any age) as well as lower the number of employees triggering an exemption from coverage from 50 to just 25. The California Chamber of Commerce labeled the proposal a “job killer,” arguing that it would increase costs and the risk of litigation for employers.
  • The Senate also approved the California Fair Pay Act in a unanimous vote. The Assembly will now consider S.B. 358, which would prohibit retaliation against employees who ask about their wages or discuss wages with fellow employees and mandate that employers pay women the same wages as male colleagues for substantially similar work. The bill—inspired by Patricia Arquette’s Oscar speech, in which she stated, “It’s our time to have wage equality once and for all”—notes that full-time female workers in California make 84 cents for every dollar earned by their male counterparts, with even larger disparities for minority women (58 cents for African-American women and 44 cents for Latin American women).
  • Finally, state lawmakers also joined the push for increasing the minimum wage (despite having just enacted legislation to raise the rate to $10 per hour by 2016), with the Senate passing a bill pushing the wage to $13 per hour. S.B. 3—which would step up the rate to $11 per hour in 2016 and $13 in 2017, with upward adjustments automatically applied beginning in 2019—passed the Senate in a 23-to-15 vote and moves to the Assembly for consideration.

To read the Emeryville sick leave ordinance, click here.

To read Assembly Bill 1017, click here.

To read Senate Bill 406, click here.

To read Senate Bill 358, click here.

To read Senate Bill 3, click here.

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“Extrapolation And Averaging” for Class Claims Before the U.S. Supreme Court

Why it matters

With the potential for a major impact, the U.S. Supreme Court has agreed to hear an employment case involving a class action filed by workers against Tyson Foods, Inc. seeking payment for the time spent putting on and taking off protective gear using “extrapolation and averaging” to determine class certification and damages. In 2007, hourly workers at a pork processing facility sued for overtime and liquidated damages for their donning and doffing time. A jury found for the plaintiffs, with a damage award of $5.8 million. A panel of the Eighth Circuit Court of Appeals affirmed the verdict, ruling that the class was properly certified using individual timesheets and average times calculated from 744 observations of employee donning, doffing, and walking.

Tyson petitioned the high court for review, asking whether a class or collective action can be certified where “liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in the sample.” A second question will have the justices consider whether a class or collective action can be certified and maintained if the group includes “hundreds of members” who were not injured or lacked a legal right to damages. The decision could have a significant effect on class actions generally as well as Fair Labor Standards Act disputes. If the justices side with Tyson Foods and take a hard line on statistical sampling or extrapolation, plaintiffs will face a more challenging road to establishing liability on a classwide basis.

Detailed discussion

Peg Bouaphakeo and a handful of other employees at a Tyson Foods meat processing facility in Iowa filed suit against their employer. The workers alleged they were not being paid the correct wages under both state law as well as the Fair Labor Standards Act (FLSA).

The plaintiffs were “gang-time” employees at the facility, meaning Tyson measured their compensable working time when the workers were at their stations and the production line was moving. The workers sought compensation for donning and doffing their protective equipment and clothing before and after lunch. Importantly, the protective gear and equipment worn and used by the plaintiffs varied depending on their position, ranging from hard hats to work boots to aprons and gloves, with some workers needing time to clean their knives.

In addition to “gang time,” Tyson added “K-code” time to each employee’s paycheck: four additional minutes for employees using knives and several more minutes for workers for pre- and post-shift walking time intended to cover the required donning and doffing of protective gear and materials. Tyson did not record the actual time that employees performed these tasks.

The K-code time was insufficient to cover compensable pre- and post-production line activities, Bouaphakeo and the other workers alleged. After class and collective actions were certified, a nine-day trial was held. The plaintiffs presented their evidence in the form of individual timesheets and the average donning, doffing, and walking times calculated from 744 employee observations.

A jury returned a verdict in favor of the plaintiffs. With liquidated damages, the judgment totaled $5,785,757.40.

Tyson appealed, arguing that the trial court erred in certifying the class and collective actions due to the differences between the plaintiffs in their individual routines, equipment used, and jobs performed. The “extrapolation and averages” used as the basis for both the certification as well as the damages calculation was unlawful, the employer added.

But the Eighth Circuit Court of Appeals affirmed the court’s certification orders, the jury’s verdict, and the damages award.

“Tyson had a specific company policy—the payment of K-code time for donning, doffing, and walking—that applied to all class members,” the panel wrote. “True, applying Tyson’s K-code policy and expert testimony to ‘generate … answers’ for individual overtime claims did require inference, but this inference is allowable …. While individual plaintiffs varied in their donning and doffing routines, their complaint is not ‘dominated by individual issues’ such that ‘the varied circumstances … prevent one stroke determination.’”

The plaintiffs did not improperly rely upon a formula to prove liability, the court said. Unlike the frowned-upon “trial by formula,” the plaintiffs proved liability “for the class as a whole, using employee time records to establish individual damages,” the court said. “Using statistics or samples in litigation is not necessarily trial by formula.”

Although the panel acknowledged that the plaintiffs relied upon inference from average donning, doffing, and walking times, “they apply this analysis to each class member individually. Using this representative evidence is comparable to a jury applying testimony from named plaintiffs to find classwide liability,” the panel said.

Tyson’s contention that the plaintiffs presented insufficient evidence to prove damages classwide failed to sway the court. “Tyson has no evidence of the specific time each class member spent donning, doffing, and walking,” the court wrote. “[W]hen an employer has failed to keep proper records, courts should not hesitate to award damages based on the ‘just and reasonable inference’ from the evidence presented.”

To prove damages, the plaintiffs used individual timesheets along with the average times calculated from a sample of 744 observations of employee donning, doffing, and walking, with expert testimony that the sample was appropriate for the type of study, representative, and approximately random, the court said, providing sufficient evidence to support a reasonable inference of classwide liability.

The court also rejected Tyson’s contention that evidence was presented at trial that some class members did not work overtime and were not entitled to damages, holding that a jury instruction approved by the defendant directed the jury to treat plaintiffs with no damages as class members.

A dissenting opinion argued that neither the class nor the collective action should have been certified given the disparities among the workers.

“[T]his case with these classes cannot be resolved in ‘one stroke,’ given the differences in donning and doffing times, K-code payments, abbreviated gang time shifts, absenteeism, sickness, vacation and a myriad of other relevant factors,” the judge wrote. “Here we have undifferentiated presentations of evidence, including significant numbers of the putative classes suffering no injury and members of the entire classes suffering wide variations in damages, ultimately resulting in a single-sum class-wide verdict from which each purported class member, damaged or not, will receive a pro-rata portion of the jury’s one-figure verdict.”

Tyson filed a writ of certiorari with the U.S. Supreme Court, arguing that the plaintiffs should not have been allowed to establish liability and damages through a “trial by formula,” noting a split among the federal circuits that have addressed the issue. While the Tenth Circuit has allowed class action damages to be extrapolated based on averages like the 8th Circuit permitted in Tyson, the Second, Fourth, Fifth, Seventh, and Ninth Circuits have refused to certify a class where the individual damages would have been inferred from statistical sampling or averages.

The justices granted cert. to answer two questions: “Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.”

A decision from the Court is expected next term.

To read the Eighth Circuit’s decision in Bouaphakeo v. Tyson Foods, Inc., click here.

To read Tyson Foods’ petition for certiorari, click here.

To read Bouaphakeo’s reply brief, click here.

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Transgender Workers and Bathrooms: OSHA Issues Guidance, EEOC Sues

Why it matters

With Caitlyn Jenner’s recent transition making headlines, transgender individuals have been in the news lately. For employers, transgender workers can present some tricky questions, as demonstrated by a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC) as well as guidance issued by the Occupational Safety and Health Administration (OSHA). OSHA published “Best Practices: A Guide to Restroom Access for Transgender Workers,” recommending that transgender employees select the restroom of their choice. “The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” OSHA advised. Only a handful of jurisdictions already have laws or regulations in place on the issue and those that do abide by this principle, the agency noted.

A few days later, the EEOC filed its third lawsuit on behalf of a transgender employee against Minnesota-based Deluxe Financial Services Corp. The company refused to let longtime employee Britney Austin use the women’s restroom after she began to present as a woman and informed her supervisors that she was transgender, the agency alleged. In addition, coworkers and supervisors used epithets and intentionally used the wrong gender pronouns, creating a hostile work environment, the EEOC alleged. Employers need to be cognizant of the rights of transgender employees, particularly as the EEOC has taken an aggressive stance, filing three lawsuits in recent months alleging discrimination by employers on the basis of sex against transgender employees.

Detailed discussion

With growing recognition of the number of transgender employees in the workplace, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) released a new guide for employers, “Best Practices: A Guide to Restroom Access for Transgender Workers.”

The core principle: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

An estimated 700,000 adults in the United States are transgender—meaning their internal gender identity is different from the sex they were assigned at birth, OSHA explained—and questions can arise in the workplace about which facilities they should use. Gender identity is “an intrinsic part of each person’s identity and everyday life,” and authorities on gender issues counsel that it is essential for employees to work in a manner consistent with how they live their daily lives.

“Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety,” according to the guidance. “Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.”

Grounding its authority in OSHA’s sanitation standard, the agency said employers are required to provide their employees with toilet facilities and may not impose unreasonable restrictions on employee use of toilet facilities.

The model practice for transgender employee access is to permit employees to use the facilities that correspond with their gender identity, OSHA stressed. A person who identifies as a man should be permitted to use men’s restrooms, while a person who identifies as a woman should be permitted to use women’s restrooms—without being asked for medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.

“The best policies also provide additional options,” OSHA added, such as single-occupancy gender-neutral (unisex) facilities or use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. “[N]o employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status,” the guidance stated.

OSHA highlighted federal, state, and local laws that address restroom access for transgender employees, with Colorado, Delaware, Iowa, Vermont, Washington, and Washington, D.C. all requiring employee access to a restroom consistent with their gender identity.

The guidance also noted a ruling from the Equal Employment Opportunity Commission (EEOC) in April, Lusardi v. McHugh, where the Commission concluded that a transgender employee cannot be denied access to the common restrooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so.

The EEOC’s ruling was followed by a new lawsuit filed in Minnesota federal court on behalf of a transgender employee the agency alleged was prohibited from using the bathroom consistent with her gender identity in violation of Title VII’s prohibition on sex discrimination.

Britney Austin began working at Deluxe Financial Services in 2007. Assigned the male sex at birth, Austin identified as female. When she applied for the job and for her first several years at Deluxe, Austin presented as male, using a traditionally male name.

In late 2010, Austin announced her intention to present as female at work to her supervisor and began to do so, beginning hormone therapy in January 2011. She informed her supervisors that she was legally changing her name to Britney Austin, provided documentation of her gender dysphoria diagnosis, and requested to use the women’s restroom. She also asked to have her sex designation changed in the internal personnel and communication systems such as phone directories and personal profiles.

The employer refused to change her sex designation until she completed the surgery portion of the gender change process and prohibited Austin from using the women’s restroom.

Even after Austin provided documentation of her legal name change, Deluxe refused to change her sex designation, instead asking her “invasive medical questions about her gender transition and related surgeries,” the EEOC said. Because the internal systems were not updated, outside vendors, customers, and colleagues continued to refer to Austin by her former male name.

In addition to continuing to deny Austin access to the women’s restroom—despite the fact she had continually presented as female since November 2010—and refusing to change her sex designation, Austin was subject to demeaning and derogatory treatment from coworkers and supervisors, the agency alleged.

Complaints about disparaging statements regarding her female appearance, repeated and intentional references to Austin with male pronouns, and making fun of her at staff training all went ignored by Deluxe, according to the EEOC’s complaint against the company.

For violations of Title VII’s prohibition on discrimination on the basis of sex and the hostile work environment endured by Austin, the EEOC requested compensatory and punitive damages as well as injunctive relief.

The lawsuit is the third filed by the agency on behalf of transgender employees alleging discrimination on the basis of sex. One of the cases settled in April when a Florida eye clinic agreed to pay $150,000 and provide a neutral letter of reference for a former employee who was subjected to poor treatment from coworkers and termination by the employer after transitioning from male to female.

To read the OSHA’s “Best Practices: A Guide to Restroom Access for Transgender Workers,” click here.

To read the complaint in EEOC v. Deluxe Financial Services Corp., click here.

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DOL Releases New Model Forms for FMLA

Why it matters

For employers looking for guidance on Family and Medical Leave Act (FMLA) paperwork, the Department of Labor (DOL) has stepped in to help. With existing model forms issued by the agency having expired, the DOL issued seven new model notice and certification forms that are valid through May 31, 2018. For the most part, the new model FMLA forms replicate the prior versions, with one minor change: the inclusion of references to the Genetic Information Nondiscrimination Act. Although employers are not mandated to use the DOL’s forms for an employee’s FMLA leave, they offer a valuable road map to compliance with statutory requirements.

Detailed discussion

The Family and Medical Leave Act (FMLA) contains a myriad of requirements for employers to provide notice to employees about their rights and responsibilities under the statute, as well as restrictions on the type of information employers can request from workers to support their request for leave.

To achieve compliance with the statutory scheme, many employers look for guidance from the Department of Labor’s (DOL) model forms. However, the last iteration expired on February 28, 2015, leaving employers in a form of legal limbo.

Now the agency has stepped up with new versions of the forms. The seven different documents are virtually identical to the prior forms, with one notable tweak: the addition of language referencing the Genetic Information Nondiscrimination Act (GINA).

The FMLA and GINA—which prohibits employers from discriminating against employees or applicants based on their genetic information—can collide if an employer receives genetic information from a healthcare provider in response to an FMLA-related request for information. To avoid this problem, the new model form instructs healthcare providers not to furnish any genetic information in response to an FMLA request.

Specifically, the DOL added the following language: “Do not provide information about genetic tests, as defined in 29 C.F.R. Section 1635.3(f), genetic services, as defined in 29 C.F.R. Section 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. Section 1635.3(e).”

The DOL provided seven new forms: WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition; WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition; WH-381 Notice of Eligibility and Rights & Responsibilities; WH-382 Designation Notice; WH-384 Certification of Qualifying Exigency For Military Family Leave; WH-385 Certification for Serious Injury or Illness of Current Servicemember for Military Family Leave; and WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.

While employers are not required to use the DOL’s model forms, they provide valuable guidance to following the statute.

The new forms are all effective through May 31, 2018.

To access the new forms on the DOL website, click here.

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