Thank you to everyone who responded to this year’s Employment and Labor Law Final Exam. We hope the exercise was challenging and informative. Congratulations to our winners, Melissa Nance (Sumter, SC) and Carol Williams (Charlotte, NC). Melissa and Carol will receive a basket full of goodies from the Gourmet Shop in Columbia, SC.
On to the answers:
1. Because South Carolina and North Carolina are at-will employment states, South Carolina and North Carolina employers can lawfully prohibit employees from discussing salaries and rates of pay in the workplace.
Answer: “False” is correct. Employers in South Carolina and North Carolina may not prohibit employees from discussing salaries and rates of pay in the workplace.
Section 7 of the National Labor Relations Act (“NLRA”) provides employees with the right to “engage in concerted activities.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to deny or limit an employee’s Section 7 rights. Thus, the National Labor Relations Board has taken the position that employers may not prohibit employees from discussing salaries or rates of pay in the workplace.
2. If an exempt employee is absent for a day because of an illness, the employer:
Answer: “C” is correct. An employer can dock an exempt employee’s accrued sick leave bank for an absence because of illness, even if the employee does not request to be paid for the absence. In addition, an employer may deduct one day’s pay from an exempt employee’s salary when the employee is absent because of illness as long as the employer has a policy providing for sick leave but the employee has exhausted available sick leave. Finally, an employer may also deduct one day’s pay from an exempt employee’s salary because of sickness if the employee has not yet qualified for the benefit, e.g., the exempt employee has not yet completed a 90-day introductory period to qualify for sick leave under the employer’s plan.
3. In South Carolina and North Carolina, an employer to whom the FMLA applies must:
Answer: “B” is correct. An employer must provide leave to a biological or adoptive parent to care for a sick child. In a situation involving a biological or adopted child, the employee’s sexual orientation or same sex marriage/partner status has no bearing on whether the employee can use FMLA leave to care for his or her sick child.
South Carolina and North Carolina employers are not required to provide FMLA leave for an employee to care for the employee’s same sex spouse’s serious health condition. In this case, the employee’s partner is not considered a legal spouse because neither South Carolina nor North Carolina recognizes same sex marriages. This is true even if the employee and his/her partner were “married” in a state that recognizes same sex marriage. Thus, because the employee’s same sex partner cannot be considered a spouse, FMLA leave is not required in this situation.
4. Under the Americans with Disabilities Act (ADA), the only basis for denial of leave as a reasonable accommodation for a qualified individual with a disability is a showing that it would be an undue hardship to the employer.
Answer: “True” is correct. The ADA requires an employer to provide reasonable accommodations to an employee if the employee is a qualified individual with a disability and needs the accommodation to perform the essential functions of the job. One such accommodation can be a leave of absence; however, an employer may refuse to provide a leave of absence as an accommodation if the leave of absence would impose an undue hardship on the operations of the employer. This type of situation can be challenging, and employers should handle each request for leave of absence as a reasonable accommodation on a case-by-case basis. And, while many employers have policies that regulate leaves of absence – including FMLA policies that allow up to 12 weeks of leave – employers should carefully review their policies to ensure that they do not impose restrictions (e.g., automatic termination of employment after a specified period of time) that run afoul of the ADA.
5. Under the Patient Protection and Affordable Care Act (PPACA):
Answer: “C” is correct. Under PPACA, all affiliated employers for which there is 80 percent or more common ownership are considered one employer. For purposes of counting the number of full-time and full-time equivalent employees for determining whether an employer is an applicable large employer, Internal Revenue Code (IRC) Section 4980H(c)(2)(C)(i) provides that all entities treated as a single employer under IRC Section 414(b), (c), (m), or (o) are treated as a single employer for purposes of IRC Section 4980H. Thus, all employees of a controlled group under IRC Section 414(b) or (c), or an affiliated service group under IRC Section 414(m), are taken into account in determining whether the members of the controlled group or affiliated service group together constitute an applicable large employer.
Answer “A” is incorrect because PPACA establishes that certain employers must offer health coverage to their full-time employees or a shared responsibility payment may apply. Answer “B” is incorrect because PPACA defines “full-time” employment as reasonably expected to work at least 30 hours per week.
We hope you have enjoyed this year’s final exam. To stay up-to-speed on developments in employment and labor law in 2014 and beyond, we invite you to follow our legal updates and to attend our quarterly breakfast briefings in your area.