On April 15, 2024, the EEOC published its Final Rule on the application and interpretation of the Pregnant Workers Fairness Act (“PWFA”). The Final Rule provides regulations and guidance for employers regarding the interpretation of the law, as well as enforcement guidance. The Final Rule was published in the Federal Register on April 19, 2024, and the regulations will go into effect 60 days thereafter.

Here are some major takeaways:

An employee’s word is (usually) enough. The regulations state that a limitation is “known” once an employee “communicates” the limitation to the employer. Therefore, automatically requesting proof of pregnancy (or childbirth/related conditions) is likely to be considered a violation of the law and possibly could lead to a retaliation claim.

“Pregnancy…and related medical conditions” includes a past pregnancy, fertility treatments, and the use of contraception. The regulations specifically state that “pregnancy, childbirth, and related medical conditions” include attempts at becoming pregnant and a miscarriage. Based on the intent of the law, employers should not limit the PWFA to only those employees who are pregnant or may have just delivered. The regulations list a number of non-exhaustive “conditions,” including post-partum depression, menstruation, and lactation.

The employee does not have to identify a medical condition or use medical terms. There is no need for the employee to specify a medical condition—they only need to state that they are pregnant, were pregnant, or are experiencing post-pregnancy issues.

Four automatically reasonable accommodations. The EEOC considers the following accommodations as reasonable in almost every situation:

• Allowing an employee to carry or keep water near and drink as needed;
• Allowing an employee to take additional restroom breaks;
• Allowing an employee to sit and stand as needed; and
• Allowing an employee to take breaks to eat and drink.

Medical certification may only be requested when reasonable. The EEOC makes it clear that an employer may (but is not required) to seek medical documentation—but tread carefully. The medical documentation must be narrowly tailored and may only be used when the need for accommodation is not obvious and where the employee had not provided self-confirmation. Further, if the employee seeks an accommodation listed in point 4 (above), it would not be reasonable for the employer to ask for medical documentation.

Employers cannot force an employee to take leave. An employer may not force an employee to take leave (paid or unpaid) if another reasonable accommodation is available.

An unnecessary delay can result in a violation of the law. An employer may violate the PWFA if it takes too long to provide a reasonable accommodation. This means that if an employer requires medical documentation, it would be a best practice to provide the accommodation requested in the interim to avoid exposure to litigation.

The temporary removal of essential functions may be appropriate. As one of the EEOC’s recommended reasonable accommodations, the temporary removal of “essential functions” may be warranted. There are several factors to consider, but the fact the EEOC identifies this as a possible reasonable accommodation means that employers must be careful when determining that a certain accommodation is not reasonable in light of the essential functions of the position.

Overall, covered entities (public and private employers with 15 or more employees) must be very careful when evaluating an employee’s need for accommodations under the PWFA. The PWFA extends to conditions that may not be considered disabilities under the Americans with Disabilities Act, so employers must adjust when an employee expresses a need for an accommodation related to pregnancy, getting pregnant, or post-partum.

Should you have any questions about the Final Rule and Pregnant Workers Fairness Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice. 

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HB433: Employment Regulations

On March 8, 2024, HB433 was submitted to Governor DeSantis for signature. The bill significantly restricts local governments’ ability to regulate private employers within their jurisdiction. If signed, the bill would preempt the authority of local governments to regulate private employers beyond state or federal law as it relates to workplace heat exposure requirements, minimum wages, employment benefits, and employee scheduling (e.g., predictive scheduling). The bill also extends to local governments’ procurement practices and limits the ability to give preference to those employers that provide greater benefits than those required by state and federal law.

Specifically, the bill prohibits local governments from establishing any law requiring private employers to meet or provide heat exposure requirements not otherwise required by state or federal law. Further, local governments may not give preference in a bidding process to an employer based on the employer’s heat exposure requirements and cannot seek information regarding an employer’s heat exposure measures as part of its request for proposal. This provision would go into effect on July 1, 2024, if signed.

The bill also amends Section 218.077, Florida Statutes, to prohibit local governments from maintaining a minimum wage that is higher than state or federal minimum wage or to provide employee benefits not otherwise required by state or federal law. Moreover, the bill creates Section 448.007 which would prohibit local governments from adopting any laws related to how private employers schedule their employees, including “predictive scheduling.” Thus, an ordinance like Seattle’s Secure Scheduling Ordinance (which requires certain private employers to give employees their work schedule fourteen days in advance and provide additional compensation if there are changes to the schedule within the fourteen-day period) would be considered null and void in Florida. Both the wage and scheduling preemption provisions would go into effect on September 30, 2026.

Recommended Actions:

1. Municipal clients should review their existing ordinances pertaining to heat exposure requirements, minimum wage requirements, and employee benefits exceeding state or federal mandates.
2. Identify procurement policies that require consideration of contractors’ current heat exposure practices or wages and benefits offered to employees. This will facilitate alignment with the likely changes in the law.

By taking proactive steps to assess and potentially amend existing ordinances and bidding procedures, municipal entities can adapt to the upcoming changes effectively.

SB818: Leave of Absence to Officials and Employees

On March 22, 2024, Governor DeSantis signed SB818 into law. The new law amends Sections 115.09 and 115.14, Florida Statutes, which require municipalities to provide paid leave for public officials and employees who are called to active military service. Under the current law, public officials and employees are entitled to up to 30 days’ paid leave regardless of the length of the military service. The amendment narrows the application of this provision by requiring paid leave only if the length of military service is 90 days or more. As a result, servicemembers called to duty for fewer than 90 days would not be eligible for paid leave. The new law goes into effect July 1, 2024.

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The FLSA—which requires employers to pay certain employees minimum wage, overtime, and keep accurate time and pay records, among other things—is only applicable to employees, not true independent contractors. However, if a company’s classification of independent contractors does not comply with the DOL’s Final Rule, companies may find themselves exposed to DOL audits, hefty fines, and litigation. 

The Tug-of-War 

During the Trump Administration, the DOL issued a Final Rule that sought to eliminate confusion among the courts related to classifying workers. Prior to 2021, courts generally looked to several factors to determine whether a worker was truly independent, including nature and degree of control, opportunity for profit or loss depending on managerial skill, investments by the worker, etc. Each factor was given equal weight. The 2021 Final Rule referred to the same factors, but deemed two factors—nature and degree of the individual’s control over the work and the individual’s opportunity for profit and loss—as “core” factors and more determinative of an employer-employee relationship. The 2021 Final Rule was generally regarded as more “employer friendly.” 

Since then, the Biden Administration has been focused on revising that rule and reverting to the “economic realities test” where no one factor controls. However, the manner in which the 2024 Final Rule has defined these factors is likely to make classifying workers as independent contractors more difficult. For example, a worker’s “skill and initiative” doesn’t just look to whether the worker needs specialized skills in order to do the job, but whether the skills required reflect the worker’s skills “in connection with business-like initiative.” Further, “degree of control” goes beyond the business’ control over the manner in which the work is performed to include restrictions on the worker’s ability to work for others or “economic restrictions.”

Why does it matter

Although it is likely that the 2024 Final Rule will be challenged, businesses would be wise to consult with competent legal counsel regarding their current classifications. Taking a more holistic approach to the ways in which the business uses and governs their independent contractors is likely to go a long way in making a strong case for proper classification should the DOL come knocking. Employers may also want to review their existing independent contractor agreements to be more clear on the expectations and nature of the work. 

It is worth noting that the DOL’s Final Rule only relates to enforcement of the FLSA and does not apply to other federal laws, including the National Labor Relations Act or anti-discrimination laws. Moreover, legal precedent within a particular Circuit is still controlling, though the Final Rule may be used to persuade courts when deciding whether certain workers are properly classified.

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The plaintiff, who served as the City’s former Director of Technology Services, alleged he was constructively discharged, claiming it was in retaliation for an Ethics Complaint he filed against the Mayor in 2021. However, the WSHC+B team presented compelling evidence that the plaintiff’s resignation was voluntary, highlighting that he had been seeking other employment opportunities well before his resignation in 2021. This key argument, prepared and argued by Lindsay Massillon with Erica Hausdorff’s support, effectively dismantled the plaintiff’s claims.

This win for the City prevented a complex and potentially disruptive trial, saving the Mayor and Council from being called as witnesses. 

Congratulations to Lindsay Massillon for drafting and arguing the Motion on behalf of the City, as well as Erica Hausdorff for her assistance throughout this case. 

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Effective April 28, 2023, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) went into full effect. The PUMP Act applies to all employers that are covered under the Fair Labor Standards Act (“FLSA”) and protects all nursing mothers (with very limited exception for certain employees of airlines, railroads, or motor coach carriers), regardless of whether the employee is exempt from minimum wage or overtime. Small employers (those with fewer than 50 employees), may be exempt from the Act if they can prove that compliance would “impose an undue hardship by causing the employer significant difficulty or expense.”

Under the PUMP Act, employers are required to provide reasonable break time to nursing mothers each time the employee needs to express breast milk for up to one year after the birth of their child. Because the law requires breaks “each time” the employee needs to pump, employers may not restrict the duration or frequency of the breaks. In addition, nursing employees must be provided with a functional space that is (1) shielded from view; (2) free from intrusion from coworkers and the public; and (3) may be used to pump breast milk. This space cannot be a bathroom (no matter how private), but can be a temporary or “as needed” space—such as an empty office—so long as the employer puts a sign on the door to alert others not to enter, or, better yet, provides a space that can be locked from the inside. Employers must provide a functional space for each nursing mother; so it may be necessary for employers to designate more than one space depending on the needs of their employees.

Employers are cautioned not to forget about their remote employees. While employers do not have to provide a functional space to remote workers, employers must allow remote employees to turn off their cameras while the employee is pumping, and must also ensure that employees are completely relieved of their duties or properly compensated.

Employers are not required to pay for breaks as long as the employee is fully relieved from their duties when pumping. If the employee is not completely relieved of their duties, their hours must be counted as working time and employees must be compensated accordingly under the FLSA. Moreover, if an employer already provides paid breaks to its employees, and the nursing employee chooses the paid break time to pump, the employer must pay the employee in the same way as it pays other employees for the break time.

Employers are also prohibited from retaliating against employees exercising their rights under the PUMP Act and an employee who believes they are the victim of retaliation can pursue a claim under the FLSA.

Employers who fail to provide reasonable break time and/or functional space requirements may be required to compensate employees for lost wages, liquidated damages, compensatory damages, and punitive damages “where appropriate.” These remedies are in addition to other equitable remedies, such as employment, reinstatement, and promotion.

In light of the PUMP Act and the Pregnant Workers Fairness Act, employers should carefully review their current policies and make sure that they align with these new mandates. Most importantly, employers must ensure their supervisors and human resource personnel are educated on these new laws and equipped to effectively handle employee concerns to reduce exposure to litigation.

Should you have any questions about the Pump Act, please feel free to contact any member of our Labor and Employment team.

The information contained in this document does not constitute legal advice.

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In the decision, McLaren Macomb, the Board reviewed confidentiality and non-disclosure provisions that restricted the employee from disclosing the terms of the severance agreement to “any third party” and barred the employee from making any statements “to Employer’s employees or to the general public that could disparage or harm the image of the Employer….” 

The Board used a “reasonable employee” standard, and held that broad restrictions have a tendency to interfere with, restrain, or coerce employees’ exercise of their rights under Section 7 of the NLRA, including filing a charge with the NLRB. The Board found the non-disparagement and confidentiality provisions to be unlawful because they:

• Prevented the employee from making a statement that the employer had violated the NLRA to their former coworkers, their union, the Board, or otherwise;
• Was not limited to the employee’s relationship with the employer;
• Was not limited in time; and
• Failed to limit its definition for “disparagement” to the narrow circumstances set out in the1953  Supreme Court decision, NLRB v. Electrical Workers Local 1229 (Jefferson Standard Broadcasting Co.)

Significantly, the ruling applies regardless of whether the employee had already been terminated prior to receiving the severance agreement. Simply offering an agreement with such unlawful terms will violate the NLRA, even if the employee declines to sign the agreement, and even if the employer never seeks to enforce the terms.

This ruling reverses prior decisions that took into consideration other factors in determining whether an agreement violated the law. We expect McLaren Macomb to be challenged in the federal courts of appeals. 

What do employers need to do?

It behooves employers immediately to review the severance/separation agreements they use and to eliminate broad confidentiality and non-disparagement clauses. This does not mean that confidentiality goes out the window completely. Employers may still restrict employees from disclosing proprietary information and trade secrets in severance/separation agreements; and they may certainly enter into separate confidentiality or non-disclosure agreements that are not tied to the receipt of severance or separation pay. However, employers may not bar employees from discussing the terms of the severance/separation agreement with other employees—or anyone else, including on social media. 

Employers should also work closely with legal counsel to revise their existing severance/separation agreements to include language and/or carve-outs stating explicitly that nothing in the agreement is meant to restrict the employee’s rights under Section 7 of the NLRA, including contacting the Board. Additionally, severability clauses are now more important than ever, so that any challenge to a non-disparagement or confidentiality clause does not invalidate the most important component of the agreement, namely, the release.  It is also advisable for employers to advise employees specifically, in the agreement, that they are not restricted from discussing their employment or the terms of the severance/separation agreement with their co-workers, assisting other employees with filing a charge, or assisting in the Board’s investigative process. The more specific and conspicuous these disclaimers are, the better. 

Finally, though the new ruling applies to severance/separation agreements issued to non-management employees (with limited exceptions, managers and supervisors do not have rights under Section 7), employers should review their current managerial severance/separation agreements to ensure that there is no language that could be deemed to limit the manager’s ability to facilitate other employees who wish to exercise their rights under the NLRA. 

The information contained in this document does not constitute legal advice.

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Gov. DeSantis is likely to sign the bill into law given his support of the bill when it was introduced in December 2021. Assuming that happens, the amendments will take effect July 1, 2022.

The Act provides that the restriction is not intended to prohibit discussion of the barred concepts as part of a training, as long as the training is done in an “objective manner.” However, there is little doubt that these amendments will effectively chill Florida employers from providing Diversity and Inclusion training and—potentially—sexual harassment training until there is further guidance on how this law will be interpreted by courts.

What do employers need to do now? It would be prudent for covered Florida employers to review their mandatory trainings—especially those trainings that focus on diversity, equity, and inclusion in the workplace. If there is any question that a particular training module could be perceived as “espousing” an idea that one race, color, sex, or national origin should be held accountable for past actions of its members, or that one set of people is historically oppressed or privileged, the employer should consider making the module voluntary. Again, this law prohibits mandatory training or instruction; so, among others, a potential way to avoid liability is to create a policy or disclaimer that makes certain training components optional. We would be happy to help you navigate through this new development. Please do not hesitate to reach out to either of us or any member of our team.

The information contained in this document does not constitute legal advice.

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Linsday is WSHC+B’s third attorney to serve in this role. Her practice focuses on employment litigation, and she regularly represents management against all employment-related claims, including discrimination, harassment, FLSA violations, whistleblower suits, wrongful termination, FMLA violations, and enforcing non-compete agreements.

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