Last week, the Second Circuit joined the Third Circuit in lowering the causation standard in evaluating alleged Family and Medical Leave Act (FMLA) violations against employers. Under a lower “motivating factor” standard established in Cassandra Woods v. START Treatment & Recovery Centers, courts within the Second Circuit must consider whether the exercise of an employee’s rights under the FMLA was one “motivating factor” in the decision to fire the employee. Previously, the Second Circuit had adopted a higher “but for” standard, which considers whether the employer wouldn’t have fired the employee “but for” the employee exercising his/her FMLA rights.
Cassandra Woods v. START Treatment & Recovery Centers
In Cassandra Woods v. START Treatment & Recovery Centers, Woods, a former substance abuse counselor at START, a nonprofit that offers treatment to narcotic-addicted patients, alleged she was unlawfully terminated after she exercised her rights under the FMLA. START defended that Woods’ termination was due to her poor performance, for which she received enhanced training and was even put on probation. Woods suffered from severe anemia and other medical conditions. She alleged that START improperly denied her requests for FMLA leave on several occasions, at least once because she was on probation. While on probation, she was hospitalized for seven days. START conceded that the leave due to Woods’ hospitalization was protected under the FMLA, yet it fired her a few weeks later due to her poor performance. Woods then sued START, alleging interference and retaliation under the FMLA. Continue Reading
On July 17, 2017, the Massachusetts Supreme Judicial Court concluded that an employee could sue her employers for state law disability discrimination for failing to accommodate her use of medical marijuana after she failed to pass a drug test. In so holding, the court interpreted workplace protections not explicitly stated in Massachusetts’ medical marijuana law.
As we 
Given the exponential uptick in wage and hour lawsuits during the Obama administration and the United States Department of Labor’s (DOL’s) continuing aggressive enforcement of wage and hour laws, many employers have felt the risk of a potential lawsuit looming over their heads for pay violations they may not even know exist. Before 2010, Opinion Letters prepared and made publicly available by the DOL were invaluable to employers seeking clarification of a wage and hour rule or regulation. Oftentimes these Opinion Letters were the only guidance available to a company desperately attempting not to run afoul of the Fair Labor Standards Act and its myriad complex regulations. However, in 2010, after 70 years, the practice was stopped in favor of Administrator Interpretations, but the frequency with which those have been issued the past seven years is glacial in comparison to the prior DOL Opinion Letters. In addition, Administrator Interpretations tended to be more general in nature, while DOL Opinion Letters had historically been more comprehensive and nuanced. 
Did the new Labor Secretary finally throw employers a bone? We think so, but it’s too early to tell whether it’s delicious bacon-flavored or some generic processed meat flavor.
Do you have a nanny or a housekeeper? A regular babysitter? If so, pay attention.
UPDATE: 
As most employers are now aware, the National Labor Relations Board (NLRB, or the “Board”) in recent years has adopted more restrictive, non-employer-friendly approaches to what it will permit in workplace policies. These rules have been applied to union employers and just as vigorously to unorganized employers. Management labor lawyers have been placing their clients on guard to prevent them from running afoul of the National Labor Relations Act (NLRA). Now that a new administration is in charge, employers are left wondering (and hoping) whether there will be a shift in this trend.