General

In Bostock v. Clayton County, decided yesterday and available here, the Supreme Court of the United States held that the anti-discrimination protections of Title VII apply to gay and transgender individuals. The decision addressed three separate cases in which an employee alleged he or she was fired from his or her job because of his or her sexual orientation or transgender status. Each pursued a discrimination claim under Title VII alleging that their termination was “because of … sex” as that phrase is used in the statute, 42 U.S.C. §2000e–2(a)(1). The lower courts split on whether this allegation was sufficient to state a claim.

In a 6-3 decision authored by Justice Gorsuch, the Supreme Court held that the employees could proceed with their claims. The majority’s opinion is rooted in a literal reading of the statutory language, holding that the phrase “because of,” is the so-called “but-for” causation standard, which means that a change to the thing in question changes the outcome. The Court then held that individuals discharged because of their sexual orientation or transgender status were discharged “because of … sex” under the “but-for” standard because, in the words of the majority’s Slip Opinion at 9, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” While the Court acknowledged that in such cases there may be other factors that are part of the employer’s decision, it concluded that was irrelevant under the “but-for” standard because under that standard the test is whether the factor changed the outcome, not whether it was the exclusive factor in the decision. The majority reasoned, for example, that if an employer had a policy against employing women who have children but not against employing men who have children, that policy would not discriminate solely based on sex because having children is a factor in addition to the employee’s sex, but that policy would nevertheless clearly violate Title VII’s prohibition against discrimination because of sex.

Justices Alito, Thomas, and Kavanaugh dissented, claiming essentially that the majority opinion had usurped the role of Congress. They claimed that when Title VII was enacted in 1964, no one intended that the words “because of” sex included sexual orientation and transgender status, as evidenced by the fact, among others, that Congress has since attempted, but failed, to pass legislation protecting those classes.

We believe that the majority’s opinion is consistent with the recent trend in the law of many states, including Missouri and Illinois, which have protected transgender and sexual orientation either expressly or impliedly under their respective anti-discrimination statutes. For employers that already have policies, practices and training prohibiting discrimination against transgender and sexual orientation status, this decision may not require much additional action. Employers that have not yet addressed these issues in their policies, practices and training should do so.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by D. Leo Human and Charles S. Elbert.

On May 8, 2020, both St. Louis City and St. Louis County issued orders providing almost identical standards and guidance for the re-opening of most businesses on May 18, 2020. For the full City order, click here, and for the full County order, click here.

The orders require all businesses that choose to re-open on May 18 to adhere to the following standards and guidance (in both St. Louis City and County, unless noted):

● Require frequent disinfection of all high touch surfaces and areas.

● Provide reasonable breaks for employees to wash hands.

● Train employees about procedures related to disinfection processes and social distancing requirements.

● Provide employees with face coverings or supplies to make face coverings.

● Require employees to wear face coverings while at work, unless such employee is working alone in an enclosed area. Employees with a medical reason for not wearing a face covering do not need to wear one (County only).

● Conduct daily screening of employees who work in their facilities for COVID-19 symptoms.

● Encourage employees to quarantine if they have or are believed to have COVID-19 or have come into contact with individual(s) with COVID-19.

● Require gloves to be worn by employees where appropriate (City only).

● Encourage remote working where feasible (City only).

● Consider policies like staggering shifts to increase social distancing (City only).

Also, the County order specifically permits a business to deny entry to an individual who refuses to wear a face covering for non-medical reasons. For businesses that have direct interactions with the public such as retail, restaurants, personal services with physical contact, and place of worship, the orders set forth some additional requirements, including:

● Limiting the number of people in the location based on the square footage and fire/building code occupancy (in line with Missouri’s re-opening order).

● Install physical barriers between customers and employees or otherwise ensure that six feet of distancing is maintained and install clear markings in areas of congregation to ensure six feet of distancing between customers.

● Post signage inside and outside the location detailing social distancing requirements (e.g., face covering) and limits on crowd size. The City requires signage about hygiene.

● Prohibit customers from bringing outside containers into the location.

● Consider separate operating hours for high risk individuals.

Both orders further mandate that certain businesses and facilities remain closed, except for minimum necessary activities to maintain a business’s inventory, provide security, process employee payroll and benefits, or to help employees to continue to work remotely. The following facilities may not re-open on May 18: entertainment, cultural, conference, casino and sporting venues; gyms and fitness centers; banquet rooms; bars that do not serve full meals are limited to curbside and pickup service; indoor and outdoor pools; sporting events; sports courts in the County; contact sports courts and playing fields in the City; and playgrounds.

Business that violate these standards and requirements could be subject to closure. If you are planning on re-opening your business in any fashion, you should carefully review the order applicable to your location to ensure compliance. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Kevin A. Sullivan.

On May 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on reasonable accommodations for employees that have medical conditions that the Centers for Disease Control (“CDC”) says makes the employee more vulnerable to COVID-19 than the employee would be without the condition. EEOC guidance does not have the force of law, but it may be relied upon by courts in analyzing claims.

The May 5 guidance provides that if an “…employer knows that an employee has one of the…” CDC identified conditions that puts the employee at a “higher risk for severe illness” if they get COVID-19, then the employee cannot be automatically excluded from the workplace ‘…solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.’ However, the employer can exclude the employee if he/she poses a “direct threat”—meaning a significant risk of harm— to his health that cannot be reasonably accommodated. The “direct threat” assessment must be individualized based on a reasonable medical judgment about this employee’s disability. The employer also should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm. 

Even if an employee’s disability poses a “direct threat” to his own health, the employer still cannot exclude the employee from the workplace if the employer can provide a reasonable accommodation (absent undue hardship).  The guidance provides a non-exclusive list of reasonable accommodations, such as protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees, erecting barriers that provide separation of the disabled employee from co-workers, elimination or substitution of particular “marginal” functions, and temporary modification of work schedules or work locations. The employer must engage in the interactive reasonable accommodation process.

Therefore, employers should not conclude that an employee who is deemed more vulnerable to COVID-19 (even for the purposes of emergency paid sick leave under the Families First Coronavirus Response Act) can be excluded from the workplace. Employers must carefully analyze each employee’s situation and possibly consult with legal counsel before making a decision to exclude a particular individual from the workplace.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Charles S. Elbert.

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) was signed into law on March 27, 2020, and contains numerous provisions summarized below that will assist and impact employers.  The full act can be found here. 

The CARES Act (§§ 1101-1114) provides for almost $350 billion in small business loans, which are available to business and non-profit organizations that employ less than 500 people and which require a good faith certification that the funds are necessary for operations and will be used to retain workers and make other payments.  No collateral or personal guarantee is required for these loans, and there is no requirement that the borrower show that credit cannot be obtained elsewhere.  The maximum amount available for the loan is the lesser of: (a) taking the average total monthly payments for payroll costs incurred 1 year before the loan and multiplying that number by 2.5; or (b) $10 million.  Allowable uses for the loan include payroll support (including paid leave and health benefits), salaries, mortgage and rent payments, utilities, and any other debt obligations.  Importantly, the Act provides (§ 1106) that a recipient of such a loan may apply to have the amounts spent on payroll costs, mortgage, rent, and utilities for 8 weeks forgiven.  Also, no fees are to be charged by the Small Business Administration, and payments on the loans can be deferred for six months to one year from the date of the loan.

The CARES Act further provides certain forms of tax relief to businesses (§ 2301-2308).  A refundable tax credit on payroll taxes paid are available to businesses that have been closed or suspended by government order or that have suffered a more than 50% decrease in gross receipts.  The payment of payroll taxes from March 27, 2020 to January 1, 2021 can be deferred so that at least 50% of the deferred payroll taxes must be made by December 31, 2021 and any remaining deferred amount paid by December 31, 2022.  The Act also modifies certain sections of the Internal Revenue Code such as those relating to net operating losses, limitations on losses, credit for prior year minimum tax liability, limitation on business interest, and qualified improvement property.  Employers should consult their accountant or tax professional as to how these changes can be beneficial.

Additional relief to employers could come from the Act’s Coronavirus Economic Stabilization Act, which provides for $450 billion in loans and guarantees to distressed businesses (ones with 500 to 10,000 employees are specifically mentioned in the Act) as determined by the Secretary of Treasury.  Employers should monitor developments as to whether their industry will be eligible for such loans and guarantees.

The CARES Act also places limits on the amounts that affected employers must pay for leave required by the Families First Coronavirus Response Act (“FFCRA”).  For an employee on leave under the Family and Medical Leave Act as required by the FFCRA, the limits are $200 per day and $10,000 in the aggregate.  For employees on emergency paid sick leave under the FFCRA, the limits are: (1) $511 per day and $5,110 in the aggregate for an employee who is under a government quarantine or isolation order, who is advised to self-quarantine by a healthcare provider, or who has Covid-19 symptoms and is under medical care; and (2) $200 per day and $2,000 in the aggregate for an employee who is caring for a person under quarantine, who is caring for children while schools or child care facilities are closed, or who is determined to be in similar condition.

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.

This update was prepared by Kevin A. Sullivan and David A. Castleman.

On March 18, 2020 President Trump signed the Families First Coronavirus Act (“Act”), which expands the Family Medical Leave Act (“FMLA”), provides emergency unemployment insurance, emergency paid sick leave and tax credits to employers for paid FMLA leave and paid sick leave. The legislation is to be effective not more than 15 days after it is signed (which would be April 3).  Set forth below is our preliminary analysis of the paid leave provisions so that you can consider this legislation in your decision making relating to employee leaves due to the coronavirus.

Emergency FMLA Leave. Employers with 500 or fewer employees are required to provide employees, who have been employed for at least 30 calendar days, with up to 12 weeks of job-protected leave (for employers with 25 or more employees) if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (as defined to cover the coronavirus). While the first 10 days of leave under such circumstances is unpaid unless the employee elects the employer’s available paid time off, thereafter a full-time employee must be paid an amount that is not less than two-thirds of an employee’s regular rate of pay with a cap of $200 per day and $10,000 in the aggregate. Adjustments are made for part-time employees based on the employees average number of hours worked during the six months (or two weeks if the employee worked less than six months) prior to taking emergency FMLA leave.

Paid Sick Leave. Employers are required to provide all employees with up to 80 hours of emergency paid sick time at the employee’s regular rate (subject to caps described below) for full-time employees and up to the average number of hours worked during a two week period for part-time employees. An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

This sick leave pay can be substituted for the 10 days of unpaid Emergency FMLA described above. The pay rate for this leave is capped at $511 per day and $5,110 in the aggregate  for employees taking leave generally described in (1)-(3), above and two-thirds of the employee’s pay at a cap of $200 per day and $2,000 in total for leave generally described in (4)-(6), above. An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time and the legislation contains anti-retaliation provisions for use of sick pay or complaining about a violation.

General comments. Both of these leave programs currently expire December 31, 2020. The Secretary of Labor shall have the authority to issue regulations for good cause to exclude certain health care providers and emergency responders from the definition of eligible employee and to exempt small businesses with fewer than 50 employees from the requirements if they would jeopardize the viability of the business as a going concern. Although not entirely clear it appears that employers that provide sick leave covering these absences may be able to use that leave to comply. We have not yet fully analyzed the tax credit provisions, but the legislation seems to provide for refundable tax credits equal to the qualified wages paid pursuant to these leave programs and against the employer portion of Social Security taxes.

As always, this is a preliminary analysis for informational purposes only. It does not constitute legal advice regarding any particular situation and should not be relied on as such. Please contact one of our labor and employment lawyers if you have any questions or if you would like assistance applying this legislation to a particular situation.

This update was prepared by Charles S. Elbert.

On February 28, 2017, the Missouri Supreme Court reinstated St. Louis City Ordinance 70078, available here, which requires covered employers to pay covered employees a minimum wage of $10/hour in 2017 and $11/hour starting January 1, 2018, for each hour worked while the employee is physically present in the City of St. Louis.  Employers governed by the ordinance include all businesses whose annual gross revenue is $500,000 or more and who have employed more than fifteen employees during each calendar week of the current and previous calendar years.  Employees covered by the ordinance include all employees who work at least twenty hours per year within City limits (with some exceptions, including seasonal educational camp workers and work-study students, among others).   Ordinance 70078 also mandates that the minimum wage will increase to reflect inflation each January first beginning in 2019.

In October 2015, this ordinance had previously been halted, by a trial court injunction as being in conflict with the state minimum wage law (The state minimum wage, per R.S.Mo. § 290.502, is currently $7.70/hour.)  However, the Missouri Supreme Court disagreed with the trial court, and in a unanimous decision, held that Ordinance 70078 is not in conflict with or preempted by state law and that the City was validly acting within its constitutional police powers in enacting the ordinance.  The Missouri Supreme Court held that Missouri’s minimum wage law sets “a floor below which an employee cannot be paid,” but does not set a maximum wage or prohibit cities from expanding the protection of the minimum wage law.

The decision appears to make the minimum wage effective immediately, though Mayor Slay has promised a “short, but reasonable, grace period” for businesses to comply.  On March 8, Mayor Slay also tweeted that “no action to enforce the minimum wage may be taken until . . . the [lower] court lifts its injunction.”  This statement seems to indicate that employers should prepare to comply with the new minimum wage now.  (The City has also set up an update page on compliance/enforcement, as well as an email address for questions.  Details can be found here.)  Compliance by businesses requires not only payment of the new minimum wage, but also: (a) placing posters in all workplaces in the City which give notice to employees of the current minimum wage and employees’ rights under the ordinance, and (b) including similar notice with the “first paycheck subject to [the] ordinance” to every employee covered by the new wage, which appears to also apply to any employer who has covered employees working in the City.

The Missouri legislature tried to block Ordinance 70078 when it was first passed in 2015, by enacting R.S.Mo. § 285.055, which prohibits political subdivisions from establishing a minimum wage exceeding the rate set by state statute.  The Missouri Supreme Court found R.S.Mo. § 285.055.2 was ineffective at voiding this particular St. Louis City ordinance, but did not invalidate the statute.  Given the legislature’s previous opposition to Ordinance 70078 as well as the disapproval of many businesses and interest groups, further legislative action (including a bill passed by the House and read in the Senate on March 9, 2017) and/or litigation to attempt to delay, halt, or eliminate Ordinance 70078 would not be surprising. 

The foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation and should not be relied on as such.  Please contact one of our labor and employment lawyers if you have any questions.  The choice of a lawyer is an important decision and should not be based solely on advertisements.

This update was prepared by Charles S. Elbert and Erin M. Leach.