Gary McLaughlin Quoted by Bloomberg BNA on Employment Issues to Watch in 2016
Gary McLaughlin, a partner in the labor and employment practice at Akin Gump, was quoted in the Bloomberg BNA Bulletin to Management article “Paid Sick Leave, Misclassification on the HR Agenda in 2016.” The article addresses some of the issues that employers and human resources officials will be confronting this year.
McLaughlin discusses a California law that governs how employers must let employees accrue and use paid sick leave. Similar to state requirements on vacation time, the paid sick leave law requires that employees be permitted to carry over unused leave time from one calendar year to the next.
McLaughlin observed that this has negative implications for California employers that had been moving to a “single bucket” system of “paid time off” (PTO) for any use. Now, he said, “you have to make sure it complies with sick pay requirements as well as vacation time requirements, so you run the risk that, for example, someone uses all their vacation time and then gets sick, and the employer says, ‘You’ve used all your paid time off,’ and the employee says, ‘What about sick leave required by law?’ There’s not a lot of case law on this yet.”
As a follow-up to this point, McLaughlin said that if an employer’s PTO policy complies with California’s paid sick leave law, an employee who has used all of his or her paid time off is not entitled to more of it if he or she then gets sick. If the policy is not in compliance, however, and the employer denies a sick employee paid time off, ‘‘there could be a violation potentially.’’
Another area of concern for HR officials this year is classification and misclassification of employees, including disputes over whether certain workers are independent contractors or employees.
Speaking of independent contractor issues, McLaughlin said they have, in recent years, “gotten to be a highly litigated area and will only be more so.” He noted that legal disputes over the status of drivers for ride-sharing services, such as Uber and Lyft, got the most attention from outside observers in 2015. ‘‘That whole industry is very new,” he said. “The litigation challenges their whole business model.”