With elections looming on November 3, it is important for employers to prepare for leave requests associated with voting. Federal law does not require employers to provide leave to vote, but most states do, especially when work hours do not allow sufficient time to vote while the polls are open. Laws also vary between states on the amount of time, whether notice is required, whether the time is paid, and whether the employer can dictate which hours the employee may take leave to vote.

In Kansas, employees are entitled to two consecutive hours of paid time to vote. However, outside the lunch break, employers may specify when the two-hour period may be taken and can require that the two-hour period be taken prior to or after an employee’s regular working hours. For example, if the polls are open from 7:00 am to 7:00 pm and the employee’s scheduled shift is from 8:00 am to 5:00 pm, the employer does not have to provide paid leave because the employee has two consecutive hours after work to vote. Any employer who intentionally obstructs an employee from voting or imposes a penalty on an employee who takes leave to vote is subject to a class A misdemeanor.

One developing area of voting leave law is how employers handle the greater flexibility in voting. If the employee has the option to vote in advance or by mail, does the employee still qualify for leave? Kansas has not yet addressed this question, but      Continue Reading...

Before 2020, the record for most fraudulent unemployment claims filed in a year in Kansas was seven. That record has been shattered. This year the Kansas Department of Labor (KDOL) has already uncovered more than 45,000 fraudulent unemployment claims. And we still have three months to go!

The scheme primarily targeted expanded unemployment programs created by the Coronavirus Aid, Relief, and Economic Security (CARES) Act in the wake of the COVID-19 pandemic. The CARES Act expanded unemployment benefits to people traditionally unable to qualify, such as the self-employed and independent contractors. The fraudulent scheme has caused significant payment delays to Kansas families.

Fraudsters used victims’ personal information to file for unemployment benefits. According to the U.S. Department of Justice, most victims had their information exposed in a mass data breach. Other victims were victims of prior identity theft. Many victims did not learn of the fraud until the KDOL denied their claims as duplicative. The KDOL also discovered fraudulent claims after employers confronted employees for filing an unemployment claim while still being employed.

Kansas isn’t unique in this regard, as a nationwide investigation uncovered similar attacks in other states. The U.S. Department of Labor estimates fraudsters have filed $8 billion in fraudulent unemployment claims so far this year in the United States.

It is important that employers pay attention to each unemployment claim to curb additional fraud. Employers can report suspected unemployment fraud at www.reportfraud.ks.gov.

Emily Matta is the newest addition to Foulston’s labor and employment law team. She grew up in Wichita, where her parents owned a restaurant. Emily received her bachelor’s degree from Wichita State University and graduated from the University of Kansas School of Law.

Her parents’ restaurant had an unmistakable impact on her career path. “The restaurant opened when I was 10 years old, and I worked there every weekend until I graduated from Wichita State,” Emily says. “Over the years, I worked in every job we had – dishwasher, hostess, server, bartender, cook, and manager.”

Emily misses the family business, especially the food, but is grateful for the opportunity to help other employers navigate the same laws that caused her parents so many headaches. “I’m looking forward to making meaningful connections with clients and becoming intimately acquainted with the ins-and-outs of their businesses.”

Emily loves all things Kansas. She enthuses, “I’ve been to almost every corner of the state and have a running list of lesser-known roadside attractions and historic sites I’d like to visit.” Most recently, she took a trip to western Kansas to see Monument Rocks and Little Jerusalem State Park.

Learn more about Emily's practice here.

On September 8, the EEOC updated its guidance with respect to what employers should know about COVID-19, the ADA Rehabilitation Act, and other EEO laws. Generally, the updates act to clarify previously taken positions of the EEOC.

Two of the important clarifications involve the EEOC’s position on administering COVID-19 tests to employees, and an employers’ ability to invite employees to request disability accommodations.

1. Employers are still able to administer COVID-19 tests if they are accurate and reliable, but the EEOC notes the consideration of false positives and negatives. The EEOC also added the disclaimer that a negative test result does not mean the employee won’t contract COVID-19, and employers should continue requiring social distancing measures.
2. Many employers are still operating from home. In preparation for returning to the physical workplace, the EEOC allows employers to invite employees to submit requests for disability accommodations in advance of their return. This would simply start the interactive process. Those employees who do not request an accommodation in advance would not be barred from later asking.

Foulston partner Tara Eberline was recently interviewed by the Kansas City Business Journal about pandemic-related layoffs and potential legal risks for employers under the provisions of the WARN Act. If your company meets the particular criteria, the Act requires a 60-day notice for worksite closings and mass layoffs … with some exceptions. Read the full article in the Kansas City Business Journal here.
(NOTE: Paywalled, but guests may access.)

Through the end of August there were at least 72 lawsuits filed against employers alleging violations of the Families First Coronavirus Response Act (FFCRA). In most of these cases, employees allege they were unlawfully fired after they contracted the virus or requested leave for one of the reasons protected by the FFCRA. In a few cases, employees say they were granted leave, but it was unpaid, and thus seek payment and other damages.

As a refresher, the FFCRA requires certain employers with fewer than 500 employees to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19, which are subject to a corresponding tax credit. Generally speaking, and subject to certain exceptions, employers covered under the Act must provide employees up to two weeks (80 hours or a part-time employee’s two-week equivalent) of paid sick leave, at full pay (up to a $511 per day) if they are subject to a quarantine order related to COVID-19, have been advised by a healthcare provider to self-quarantine related to COVID-19, or are experiencing symptoms related to COVID-19. The Act also provides for up to two weeks of paid sick leave at two-thirds pay (up to $200 per day) to employees if they are caring for an individual who is subject to a quarantine order or has been advised by a healthcare provider to self-quarantine, and up to 12 weeks of paid sick leave and expanded FMLA leave at two-thirds pay (up to      Continue Reading...

Join us this fall for the same HR Training Series you know and love – now in a virtual format! Foulston hosts these webinars for HR professionals, managers, and business owners in all industries across the region. Each session addresses HR issues that are important and relevant to employers. HRCI, SHRM, and CLE credit will be requested for webinar participants; just check the certification details at foulston.com/hrtraining.

Session Topics:

• Advanced FMLA Scenarios | September 30, 2020 | Register here
• A View From the Plaintiff’s Side | October 8, 2020 | Register here
• OSHA Nuts and Bolts | October 22, 2020 | Register here
• Wage and Hour Workshop | November 4, 2020 | Register here
• Common Pitfalls | November 12, 2020 | Register here
• End-of-Year Update | December 10, 2020 | Register here

View the full series schedule with topic descriptions here.

On Sept. 11, 2020, the U.S. Department of Labor issued revisions to its regulations that implement the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (FFCRA). The revised rule will take effect on Sept. 16, 2020, when it will be published in official form.

Revised Regulations Respond to Court Ruling

These revisions were made to clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions in light of a New York court’s order finding portions of the initial regulations invalid. Specifically, the court set aside four parts of the regulations: (1) the requirement that paid sick leave and expanded family and medical leave are available only if an employee otherwise has work from which to take leave; (2) the requirement that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement that employees who take FFCRA leave must provide their employers with certain documentation before taking leave.
In its revised regulations, DOL does the following:

• Reaffirms and provides additional explanation for the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
• Reaffirms and provides additional explanation for the requirement that an employee must obtain employer approval to take FFCRA leave intermittently.
     Continue Reading...

The Department of Labor continues to update the Q&As regarding the Families First Coronavirus Response Act (FFCRA). The recent updates have big impacts on parents of school-aged children as schools tackle the decision of how to move forward. No matter what local schools and parents decide, it is important that employers be prepared.

Hybrid Learning: Under this model, children would alternate between days attending school in person and participating in remote learning. Here, parents would be allowed to take FFCRA leave on the days that the child is home participating in remote learning, because school is effectively “closed” on the days of remote learning. The requirement still applies that the employee must actually need to care for the child during that time and there is no other suitable person to do so.

Remote Learning: Some schools are choosing to proceed with only remote learning because of COVID-19. Employees with children who attend such schools would be eligible for FFCRA leave while the school is closed, as long as the employee meets the other requirements. In the event the school reopens at a later time, the employee may lose FFCRA eligibility.

Elective Remote Learning: If an employee has the option of allowing his or her child to attend in person classes or participate in remote learning, the situation changes. Employees who voluntarily sign up for remote learning out of fear their child will contract COVID-19 will lose eligibility for leave under the FFCRA because the school      Continue Reading...

On August 21, 2020, the Kansas Human Rights Commission (“KHRC”) decided to begin accepting complaints of “sex” discrimination in employment, housing, and public accommodations based on an individual’s LGBTQ status under the Kansas Act Against Discrimination (“KAAD”). This decision follows the U.S. Supreme Court’s ruling in Bostock v. Clayton County, where the Supreme Court held that Title VII protects individuals from employment discrimination on the basis of their sexual orientation and gender identity.

Notably, the KHRC’s decision expands on Bostock in two important ways. First, the KAAD applies to Kansas employers with four or more employees, whereas Title VII only covers businesses with 15 or more employees. Second, the KHRC’s decision expands protections to individuals alleging discrimination in housing and public accommodations. In an e-mail to interested parties, the KHRC’s Executive Director indicated that formal guidance will be forthcoming.

Kansas employers should contact counsel to determine the impact the KHRC’s decision will have on their business. And, if they haven’t already, Kansas employers should review their anti-discrimination and harassment policies to ensure that sexual orientation and gender identity are included as protected categories.

Sixteen members of Foulston’s employment and labor law practice group have been selected for inclusion in the 2021 Edition of The Best Lawyers in America®. Best Lawyers honors attorneys whose peers recognize their reputation and professional experience in a practice area.

Foulston employment and labor law lawyers recognized in The Best Lawyers in America© 2021, and the practice areas for which they were selected, are as follows:

• James M. Armstrong: Bet-the-Company Litigation; Commercial Litigation; Legal Malpractice Law - Defendants; Litigation - Antitrust; Litigation - Intellectual Property; Litigation - Labor and Employment; Litigation - Regulatory Enforcement (SEC, Telecom, Energy); Litigation - Securities
• Donald D. Berner: Employment Law - Management; Labor Law - Management; Litigation - Labor and Employment
• Vaughn Burkholder: Employment Law - Management; Litigation - Labor and Employment; Workers' Compensation Law - Employers
• Boyd A. Byers: Employment Law - Management; Labor Law - Management; Litigation - Labor and Employment
• Wendell F. Cowan: Employment Law - Management; Insurance Law; Litigation - Labor and Employment; “Lawyer of the Year” in Insurance Law – Overland Park, Kansas
• Jeff P. DeGraffenreid: Litigation - Labor and Employment; “Lawyer of the Year” in Litigation - Labor and Employment – Wichita, Kansas
• Tara Eberline: Employment Law - Management
• Douglas L. Hanisch: Employee Benefits (ERISA) Law
• Jason P. Lacey: Employee      Continue Reading...

On August 3, 2020, a federal judge in the U.S. District Court for the Southern District of New York invalidated several key portions of the U.S. Department of Labor’s (“DOL”) Final Rule implementing the Families First Coronavirus Response Act (“FFCRA”).

The U.S. Department of Labor (“DOL”) recently published seven new Family and Medical Leave Act (“FMLA”) forms. These optional-use forms can be used by employers to provide required notices to employees, and by employees to provide appropriate certification of their need for leave. However, employers are still free to use their own forms, so long as they provide the same basic notice information and require only the same basic certification information.

The new forms are:

1. WH-380-E – Employee’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee.
2. WH-380-F – Family Member’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee’s family member.
3. WH-381 – Rights and Responsibilities Notice – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
4. WH-382 – Designation Notice – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement.
5. WH-384 – Qualifying Exigency – for use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
6. WH-385 – Military Caregiver Leave of a Current Servicemember – for use when requesting leave to care for      Continue Reading...

The Civil Rights Act of 1964, which includes Title VII, prohibits employment discrimination against employees because of race, color, national origin, religion, and sex. Today, the Supreme Court issued its long-awaited decision in a trio of cases that tested the question of whether Title VII’s existing ban on discrimination “because of… sex” includes discrimination because an employee is gay or transgender. A six-justice majority of the Court ruled that an employer indeed violates the law when it impermissibly considers an employee’s LGBTQ status in making employment decisions.

In the cases at issue, the Court heard three similar fact patterns, representing a split among the federal appellate courts. In the title case, Bostock v. Clayton County, Georgia, a long-time gay male county employee alleged that he was terminated for conduct “unbecoming” of a county employee shortly after he joined a gay recreational softball league. In that case, the Eleventh Circuit Court of Appeals, covering Georgia, Florida, and Alabama, ruled that Title VII’s prohibition against discrimination based on sex did not include sexual orientation discrimination.

The Second Circuit Court of Appeals, covering Connecticut, New York, and Vermont, gave an opposite ruling in Altitude Express, Inc. v. Zarda. In that case, Zarda, a gay male skydive instructor, alleged that he was terminated because he was openly gay and referenced his sexual orientation to clients and coworkers. The Second Circuit concluded that an employer cannot consider or define a person’s sexual orientation without considering the person’s sex. Thus, sexual orientation discrimination is discrimination because of sex,      Continue Reading...

With the economy largely reopened, but COVID-19 cases continuing to fluctuate, some businesses are concerned about lawsuits from customers and guests who may be exposed to, and subsequently become ill from, the coronavirus while on their premises. In June, the Kansas Legislature addressed these concerns when it passed the COVID-19 Response and Reopening for Business Liability Protection Act, which, among other things, grants Kansas businesses immunity from COVID-19-related civil claims if they substantially comply with required “public health directives.” Here are three things Kansas employers should know about the Act.

(1) What does the Act do?
The Act grants immunity from liability in a civil action for a COVID-related claim to any person conducting business in Kansas who substantially complies with required public health directives. The Act broadly defines “person” to include individuals, for-profit businesses, non-profit organizations, and government entities. One example of a situation that may be covered is when a patron dines in at a restaurant and later tests positive for COVID-19. Even if the patron can show causation by linking her COVID-19 exposure to the restaurant, then the Act may shield the business from civil liability if the restaurant substantially complied with applicable public health directives.

(2) What are “public health directives”?
The Act defines “public health directives” as any federal, state, or local statutes, rules, and regulations regarding COVID-19 that entities or individuals are required by law to follow.

(3) How long is the Liability Act in effect?
The Act retroactively applies to claims      Continue Reading...