New Jersey employers seeking to compel arbitration secured a big win earlier this month when a federal judge ruled that former employees agreed to an arbitration agreement by clicking on a hyperlink sent to them by their employer.  The judge decided in favor of the employer even though the employer could not prove that the employees read or understood the terms of the agreement.

“Plaintiffs’ argument that clicking on the hyperlink does not prove they read or fully understood the terms of the Arbitration Agreement is irrelevant,” Judge Martinotti said in his written opinion.  “A party is ‘bound by the hyperlinked agreement, even if that party did not review the terms and conditions of the hyperlinked agreement before assenting to them.'”

Notably, the arbitration agreement required employees who did not consent to the Arbitration Agreement to affirmatively opt out of the arbitration process by a certain deadline.  The employees failed to do so, and are now required to arbitrate their employment-related claims.

This decision is consistent with rulings in other jurisdictions that an “opt out” process is sufficient to prove consent in certain scenarios.

The case is Horowitz et al. v. AT&T Inc. et al, case number 3:17-cv-04827, in the U.S. District Court for the District of New Jersey.

Employers in California should be ready for a big change in the retirement law to take effect over the next three years. This change comes in the form of a new California program called CalSavers (formerly known as Secure Choice). CalSavers is a state-sponsored individual retirement account (“IRA”) program similar to existing programs in Oregon and Illinois.

CalSavers applies to any employer in California with at least five employees. The law requires California employers to either offer their employees a “qualified” retirement plan or facilitate their employees’ enrollment in a state-sponsored payroll-deduction plan. Qualified plans are those governed by the Employee Retirement Income Security Act (“ERISA”), the federal law designed to protect private-sector pensions. These plans can range from 401(k) plans to automatic payroll-deduction IRAs.

Employers who do not provide a qualified plan for their employees must facilitate their employees’ enrollment in the state-sponsored plan. This plan differs from a traditional 401(k) based on the level of employer involvement it allows. For example, employers do not have the option of matching an employee’s contributions under the state-sponsored plan. An employee’s enrollment in the state-sponsored plan will come at no cost to employers beyond the time invested in facilitating enrollment.  An employer must also enable employees to make a direct payroll contribution to their CalSavers account and transmit the contribution to a third party, known as an administrator, or designate their payroll services provider to facilitate on their behalf. Beyond that, the employer’s responsibilities under the state-sponsored plan consist primarily of providing information about the program to their employees.

Notably, CalSavers also has a number of safeguards in place to limit employers’ liabilities and responsibilities. For example, employers will not have any liability for an employee’s decision to participate in or opt-out of the CalSavers program. Furthermore, employers will not be fiduciaries of the program or have any liability for the investment decisions of participating employees. Finally, employers will not be responsible for the administration, investment performance, or payment of benefits earned by participating employees.

California employers should prepare to comply with CalSavers. Employers without a qualified retirement plan who do not facilitate the payroll-deduction could be fined as much as $500 per eligible employee. CalSavers will be open to all eligible employers starting July 1, 2019. After that, the employer mandate to comply will take effect on a rolling basis based on the size of the employer.

Size of employer Deadline
Over 100 employees June 30, 2020
Over 50 employees June 30, 2021
Five or more employees June 30, 2022

Hogan Lovells is prepared to help California employers comply with CalSavers. For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.

 

About 1.4 million Americans recognize themselves – surgically or otherwise – as a gender other than the one they were born into. In recent months, the Department of Justice (DOJ) has promoted the view that the federal employment anti-discrimination law, Title VII, does not ban employment discrimination against employees on the basis of gender identity. The DOJ’s viewpoint is in opposition to the Equal Employment Opportunity Commission’s interpretation of Title VII.[1] In October 2017, former Attorney General Jeff Sessions issued a memorandum advocating that Title VII does not cover gender identity per se, including transgender status.  More recently, in October 2018, the DOJ filed a brief with the U.S. Supreme Court in a pending transgender employment discrimination case espousing the same stance. Thus, at present, there is no federal law explicitly prohibiting employment discrimination against transgender employees.

Despite the ambiguity around federal legal protections for transgender employees, employers should still be conscientious of workplace policies that affect transgender rights. There are numerous state and city laws that protect transgender individuals from gender identity discrimination in the workplace. To date, 21 states and hundreds of municipalities have established laws that protect transgender individuals.  As a result, employers should not only be aware of such laws, but amend workplace policies to comply with the jurisdictions in which they operate. The following laws are applicable in New York:

New York Code of Rules and Regulations (NYCRR)  

New York State’s Division of Human Rights (DHR) enacted regulations in January 2016 prohibiting discrimination on the basis of gender identity, gender expression, and transgender status. Under NYCRR §466.13, treating someone differently because of their gender identity, gender expression, and transgender status is a form of sex discrimination, and is therefore prohibited. NYCRR §466.13(d)(4) also prohibits discrimination on the basis of gender dysphoria, defined as a psychological condition relating to an individual having a gender identity different from the sex assigned at birth, and classifies such discrimination as a form of disability discrimination. Further, an employer may not deny reasonable workplace accommodations to an employee experiencing gender dysphoria. Employees who experience employment discrimination or harassment on the basis of gender identity, gender expression, transgender status, or gender dysphoria may have a legal claim under New York State Human Rights Law (NYSHRL).

New York City Human Rights Law (NYCHRL)

The New York City Human Rights Law (NYCHRL) forbids employment discrimination on the basis of gender, gender identity, and gender expression. In 2016, the New York City Commission on Human Rights (NYCCHR) issued guidance on the intent and scope of this protection. Most notably, the NYCCHR guidance defines “gender” as one’s “actual or perceived sex and shall also include a person’s gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” One’s gender identity can be male, female, both, or neither, i.e. one’s internal perception of gender. One’s gender expression is how their gender is represented through the individual’s choice of pronouns, clothing, haircut, behavior, voice, or body characteristics, i.e. the individual’s external portrayal of gender. NYCHRL makes it unlawful to refuse to hire, promote, or fire an individual because of a person’s actual or perceived gender, including actual or perceived status as a transgender person.  It is also unlawful to set different terms and conditions of employment because of an employee’s gender, such as through work assignments, employee benefits, and keeping the workplace free from harassment.

Workplace Policies

Pursuant to New York State and City laws, employers should take precautions in the workplace to protect the rights of transgender employees. Among such precautions, employers should consider:

  • Avoiding gender-specific dress codes – While federal law allows employers to adopt dress codes and grooming standards with gender-based differences, the NYCHRL prohibits such dress codes, uniforms, and grooming/appearance standards. New York employers may, for example, set professional dress codes requiring all employees to wear either slacks or skirts, but cannot require women to wear only skirts or men to wear only slacks;
  • Being conscientious of their employee’s preferred pronouns – NYCHRL requires employers to use preferred pronouns, e.g. him, her, their; and title, e.g. Mr., Mrs., Ms., regardless of the individual’s sex assigned at birth;
  • Using an employee’s preferred name – NYCHRL requires employers to use an employee’s preferred name, regardless of whether the employee has identification in that name or has obtained a court-ordered name change;
  • Letting transgender employees use the facilities of their choice – Employers are required to allow individuals to use single-sex facilities, such as restrooms and locker rooms, and participate in single-sex programs, consistent with the gender they identify with;
  • Creating internal procedures to evaluate accommodation requests in a non-discriminatory manner – As required by NYCRR, this consideration includes accommodations for medical appointments and recovery time, where such reasonable accommodations are provided to other employees;
  • Ensuring the workplace is free of harassment – Employers must be proactive about maintaining an inclusive environment where harassment of any kind, including on the basis of gender identity, is not tolerated.

Hogan Lovells’ employment attorneys have extensive experience crafting inclusive workplace policies, and are available to help employers take the necessary steps to comply with New York’s anti-discrimination requirements.

[1] In April 2012, the EEOC clarified that gender discrimination, specifically transgender discrimination, falls under Title VII of the Civil Rights Act’s protection against sex discrimination. In March 2018, the EEOC obtained a favorable ruling in a legal battle over a transgender employee’s firing; after the employee notified her employer she would be transitioning from a male to a female and would dress as a woman while at work. The 6th Circuit ruled in favor of the EEOC, holding that firing transgender employees for failing to conform to gender norms was illegal sex discrimination under the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins. Further the 6th Circuit stated that Title VII protects transgender employees because their gender identity is inherently tied to their sex. The employer has recently appealed the ruling to the U.S. Supreme Court, and cert is pending.

New Jersey’s New Earned Sick Leave Act: Answers to Frequently Asked Questions

Just a reminder, the New Jersey Earned Sick Leave Act (the “Act”) went into effect on October 29, 2018.

Which employers are covered? The Act applies to all private New Jersey employers.  It applies to all public New Jersey employers with one exception. New Jersey public employers who already provide sick leave at full pay pursuant to any New Jersey rule or law other than the Act are excepted from the Act.   However, to the extent a public employer has employees who are not provided with full pay pursuant to another New Jersey law, those non-covered employees are now covered by the Act.

Which employees are covered? The Act applies to all employees—full-time, part-time, or seasonal. The Act does not apply to independent contractors.  Unlike some other states, New Jersey does not omit exempt employees from the scope of its paid sick leave law. In recording the working hours of an exempt employee, an employer may: (1) record the hours actually worked by an exempt employee; or (2) presume that the exempt employee works 40 hours in a workweek for purposes of paid sick leave accrual.

For what purposes may sick leave be used? The Act allows employees to use paid sick leave for:

  • time needed for diagnosis, care, or treatment of an employee’s mental or physical illness, or for preventative medical care for the employee;
  • time needed for the employee to aid or care for a family member of the employee during diagnosis, care, treatment of, or recovery from a family member’s mental or physical illness, injury, or other adverse health condition, or for preventative medical care for the family member;
  • an absence which is necessary due to circumstances resulting from the employee, or a family member, being the victim of domestic or sexual violence;
  • time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of an employee’s child, due to a public health emergency; or
  • time needed by the employee in connection with a child of the employee to attend a school related conference, meeting, function, or other event requested or required by the school, or to attend a meeting discussing care provided to the employee’s child for the child’s condition or disability.

How much sick leave must be provided? Employees earn one hour of sick leave for every 30 hours worked.  The Act does not require the employer to permit the employee to accrue more than 40 hours of earned sick leave in any benefit year.

May employers cap sick leave use? Yes. Employers may cap sick leave use at 40 hours per year.

How much notice must an employee provide? The Act does not permit employers to ask for more than seven days’ notice for an event which is foreseeable that requires time off. For unforeseeable events, employees are only required to provide notice “as soon as practicable.”

What happens to sick leave at termination? The Act does not require employers to pay out unused earned sick leave to the employee at the end of employment.  However, if an employee is rehired within six months, employers must reinstate the employee’s previously accrued earned sick leave.

What if an employer already has a paid time off or paid sick leave policy? An existing paid time off policy can be compliant with the Act as long as that policy meets or exceeds all of the requirements of the Act and may be used for the purposes listed within the Act. For example, if an employer already allows paid time off for other purposes, an employer is not required to provide additional time designated for earned sick leave if vacation or personal leave days may be used for sick leave and the policy meets the Act’s requirements.

What are the consequences for failure to comply? Under the Act, an employer may be subject to penalties provided by the New Jersey State Wage and Hour Law.  The Act also provides for a private right of action which could subject employers to, among other things, liquidated damages equal to the actual damages sustained by an employee.

What’s next and what should employers do? If Employers have not already done so, employers should act now to ensure their compliance with the Act, including establishing or updating paid sick leave or paid time off policies to provide the required leave.  Employers must post the notice issued by the Commissioner in an accessible location.  The Commissioner’s notice details the amount of earned sick leave to which employees are entitled, the terms of its use, and remedies/rules provided by the Act.

As 2018 draws to a close, it is worth taking a closer look at the increasing legal impact of the #MeToo movement. The chorus of victims’ voices and the media spotlight exposed the prevalence of sexual misconduct in the workplace.  As a result, state legislatures passed reform measures to create new laws—from New York’s mandate to businesses to adopt comprehensive anti-harassment policies and training to California’s required percentage of women serving on boards of publicly traded companies—with many other states banning or seeking to ban mandatory arbitration and non-disclosure agreements in harassment cases.  This post examines what is happening in the courts and the effect of the #MeToo movement on sexual harassment litigation. So far, there has been a significant uptick in harassment claims, enforcement actions and damage recoveries at the Equal Employment Opportunity Commission (“EEOC”), indications of increased punitive damages awards from juries, and, perhaps most significantly, cracks in the foundation of the Faragher-Ellerth affirmative defense often relied upon by employers to win summary judgment in sexual harassment cases.

The EEOC Turns Up The Heat

The EEOC, the federal agency that enforces Title VII’s prohibition on employment discrimination, published an important Task Force Report in 2016 that comprehensively addressed the root cause of workplace sexual harassment and the best practices to eradicate it. https://www.eeoc.gov/eeoc/task_force/harassment/task_force_report.cfm.  In October 2018, the EEOC issued noteworthy statistics comparing FY 2017 (predating #MeToo) to FY 2018 (10 months after #MeToo exploded in the fall of 2017). There were significant upticks in activity in sexual harassment cases: charges filed were up by 12%, EEOC lawsuits increased by 50%, and damages recovered in cases increased by 67%.  Preventing systemic sexual harassment is one of the EEOC’s six substantive priorities for fiscal years 2017-2021 and this increased focus is here for the foreseeable future.

More Punitive Damage Awards

Two recent large punitive damage awards in sexual harassment cases in NYC and Boston may be a harbinger of a trend in trying such cases in the #MeToo era.  In March 2018, a New York federal court jury awarded a long term employee at a Yonkers sugar cane factory $13.4 million dollars, including $11.7 in punitive damages for the barrage of humiliating sexual comments from her stockroom supervisor she endured for years. The trial judge ultimately reduced the award to $800,000 to conform to federal and state law limits on damages but the jury’s strong message should be heard nonetheless. In August of 2018, a Boston state court jury awarded a salesperson at an auto dealership $3 million in punitive damages on her sexual harassment case for similar conduct.  In Massachusetts, a spike in punitive damage awards in all discrimination cases since the Weinstein case exploded is viewed by many employment lawyers as a response to the #MeToo Movement.

Informed by #MeToo, Court of Appeals Revisits Faragher-Ellerth Defense

In what may be the most legally significant development in the wake of the #MeToo movement, a federal Courts of Appeals has called into question the fundamental policies behind the Faragher-Ellerth defense based on the realities of the workplace as revealed by the #MeToo movement.  The U.S. Supreme Court established the Faragher-Ellerth defense to liability in hostile work environment cases for employers that could demonstrate: 1) they took reasonable steps to prevent the harassment (i.e., it had an anti-harassment policy and procedure and 2) the plaintiff employee unreasonably failed to avail herself of the corrective measure (i.e., complain under the policy). In the 30 years since, employers have routinely obtained summary judgment on this basis, even when the plaintiff claimed that fear of retaliation motivated her silence.

Earlier this year, in vacating a summary judgment in Minarsky v. Susquehanna County, 895 F.3d 303 (3rd Cir. 2018), the Third Circuit Court of Appeals interpreted the Faragher-Ellerth defense in light of the lessons learned from #MeToo. In what may be an oft-cited footnote, the Court stated, “[t]his appeal comes to us in the midst of a national news virtual firestorm of rampant sexual harassment that has been closeted for many years, not reported by victims.” The court continued: “while the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser … there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims chose not to report the harassment.”  The court found that ”[w]hile an employee’s “generalized and unsupported fear of retaliation is insufficient to explain a long delay in reporting sexual harassment,” the plaintiff had offered several legitimate reasons that a jury could find reasonable: 1) her financial dependency on her job with a sick daughter to care for, 2) her fear of retaliation based on the harasser’s comments and 3) the perceived futility of reporting because the harasser’s comments were known to others.  In the evolving landscape of sexual harassment laws across the country, we will closely monitor whether the Third Circuit’s decision signals a shift in how courts interpret the Faragher-Ellerth defense moving forward.

Preventing sexual harassment remains the best defense and a respectful and inclusive workplace culture is the place to start.  Hogan Lovells’ employment attorneys are well-equipped to help employers take the steps necessary to comply with changes to harassment laws. Learn more about our Contemporary Anti-Harassment Training here.

We would like to inform you about a verdict obtained by our law firm on November 27th for the multinational company Alcoa who was sued by its European Works Council (hereafter: EWC) in connection with envisaged redundancies at two factories in Spain. The case was handled by our Dutch employment team.

This is the first judgment in the Netherlands on the concurrence of European and national employee consultation for transnational matters.

Alcoa (company producing aluminum) had started a consultation process with its EWC and the Spanish works councils simultaneously in connection with a possible collective redundancy of its employees (approximately 700) from two locations in Spain.

The EWC sued Alcoa and considered that the decision to close the Spanish locations had already been taken and that, as a result, the consultation obligation had also been breached since its advice would no longer have any weight. The central question was whether a decision has already been taken, and when the EWC should be consulted. The court ruled in Alcoa’s favor because it did not breach the consultation obligations by running the European and Spanish consultations in parallel and the court concluded that there was no proof that the decision to close the two locations had been taken.

A summary of the main legal considerations is given below:

  • The Dutch European Works Councils Act must be interpreted in accordance with Directive 2009/38/EC. The Directive concerns the information to and consultation of employees, which is implemented through a EWC. The information and consultation obligation applies to matters of a transnational nature (Dutch law refers to cross-border matters). The judge considers it sufficiently plausible that a cross-border case exists because of the large number of employees (20%) that are likely to be made redundant and the influence it is likely to have on the Shared Service Center in Hungary. Besides that, Alcoa has informed the EWC itself of the intention and it therefore seems that Alcoa itself also assumes that there is a cross-border case.
  • The Judge has established that there is no objective evidence that the decision to close the two Spanish establishments has already been taken. No written evidence to this effect has been submitted, nor has the EWC claimed that Alcoa orally stated this. It is not important in this respect that Alcoa has now started a consultation process with Spanish trade unions and employee representative bodies. It cannot be assumed that Alcoa has violated its legal obligation to inform and consult the EWC in good time. The EWC has also not disputed that various consultations have taken place with it in in the meantime.
  • Alcoa is not obliged to consult the EWC before entering into consultation with the EWC and trade unions. The EWC’s reliance on the Dutch Collective Dismissal Notification Act is incorrect. The trade unions must be informed in good time. Nor does it follow from the EWC agreement that the EWC must be consulted first, nor does the Directive stipulate this. Finally, the court considered that the consultation in Spain is intended for national matters and that the consultation with the EWC is intended for national matters of a cross-border nature. Therefore, there can be no coordination problems.
  • Because the EWC cannot be ordered to pay the costs of the proceedings, the Court will compensate the costs of the proceedings in the sense that each of the parties shall bear the costs of the proceedings.

Do not hesitate to contact us if you have any questions. We will be happy to explain the considerations of the Court of Rotterdam or put you in contact with our Dutch colleagues.

Effective December 31, 2018 the minimum wage will rise across New York. The new minimum wage will vary depending on the location and, in New York City, the size of the business. In order for exempt employees to remain exempt into the new year, employers will need to ensure that their annual salaries meet the new required minimum salary threshold.

Beginning December 31, 2018, the following minimum wages are in effect:

Hourly Employees:

Employers outside of Nassau, Suffolk and Westchester counties or NYC $11.10 per hour
Nassau, Suffolk and Westchester employers $12.00 per hour
New York City employers with 10 or fewer employees $13.50 per hour
New York City employers with 11 or more employees $15.00 per hour

Salaried Employees:

Employers outside of Nassau, Suffolk and Westchester counties or NYC

$832 per week

$43,264 annually

Nassau, Suffolk and Westchester employers

$900 per week

$46,800 annually

New York City employers with 10 or fewer employees

$1,012.50 per week

$42,650 annually

New York City employers with 11 or more employees

$1,125 per week

$58,500 annually

Because overtime exemption is analyzed on the basis of workweeks, rather than years, salary increases must conform to the new requirements by the first day of the workweek in which December 31, 2018 falls. Non-compliant employers risk losing the exemption for that workweek, and may be subject to penalties from local, state or federal authorities.  Employers may not count an employee’s nondiscretionary bonuses, incentive payments, or commissions towards their salary to reach the minimum.

Remember, under New York’s Wage Theft Prevention Act (“WTPA”), employers are required to give written notices to each new hire with the following information:

  • Rate or rates of pay, including overtime rate of pay if applicable;
  • How the employee is paid (hourly, per shift, daily, weekly, by commission, etc.);
  • Regular payday;
  • Official name of the employer and any other names used for business;
  • Address and phone number of the employer’s main office or principal location;
  • Allowances taken as part of the minimum wage (tip, meal, and lodging deductions); and
  • The notice must be in English and in the employee’s primary language if the Department of Labor offers a translation

If any of the above data changes, employers must give the employee a week’s notice, unless the employee’s new paystub carries the notice. However, employers must notify an employee in writing before reducing his or her wage rate.  Employers in the hospitality industry must give notice every time an employee’s wage rate changes.

 

Effectively immediately, employers who perform background checks on applicants or employees using third party consumer reporting agencies (these background checks are known as “consumer reports”) need to update their background check paperwork under the Fair Credit Reporting Act (“FCRA”) by replacing their old “Summary of Your Rights Under the Fair Credit Reporting Act” forms with a new, revised version, available here. The new version of the form includes information regarding an individual’s right to obtain a security freeze or fraud alert on his or her credit report, consistent with recent amendments to the FCRA.

As background, the FCRA imposes a number of technical requirements on employers and consumer reporting agencies that must be satisfied in order to lawfully obtain a consumer report, including providing an appropriate disclosure and obtaining authorization from the employee or applicant before the consumer report is obtained. The FCRA also imposes certain notice requirements before taking adverse action against an applicant or employee based on a consumer report. Full compliance with these technical requirements is important, as technical FCRA violations can sometimes serve as fertile ground for class actions.

One of the FCRA’s notice requirements is that employees and applicants must be provided with a form entitled “Summary of Your Rights Under the Fair Credit Reporting Act” on certain occasions, including before taking adverse action based on material obtained from a consumer report, or before obtaining an “investigative consumer report,” which is a consumer report which includes information obtained from personal interviews conducted by a consumer reporting agency. Last month, the Consumer Financial Protection Bureau updated this form, and employers and consumer reporting agencies must immediately begin using the newly-revised form or, temporarily, may continue using the old forms but include a separate page in the transmittal of the old form which includes additional information regarding security freezes.

Employers should keep in mind that state law may impose additional requirements. For more information about compliance with the FCRA (or relevant state law) as it applies to background checks or for any other employment matter impacting your business, please contact the authors of this article or the attorney with whom you regularly at Hogan Lovells.

Earlier this week, the New York Governor’s office finalized materials for New York State employers to implement sexual harassment policies and training.  While draft guidance was circulated to the public in August 2018, the finalized policies have some noticeable differences.  Of immediate interest is the extension that employers received to implement their first mandatory anti-harassment training from January 1, 2019 to October 9, 2019, giving employers who were scrambling to conduct a training 10 more months to do so.

Some other noteworthy differences include:

  • Modification of the definition of “sexual harassment” to prohibit harassment against individuals’ “self-identified or perceived sex, [or] gender expression”
  • Removal of language in the model policy language and the model training program that employers must have a “zero tolerance” policy toward harassment
  • Insertion of language that investigations should begin immediately and be kept “confidential to the extent possible”
  • Removal of language in the model training program that investigations should be concluded within 30 days, instead stating that the investigations should be completed “as soon as possible”

The State’s website contains a model sexual harassment policy, model training materials, a model complaint form, and frequently asked questions.

Employers do not have a duty to use the model policies and training, but must be sure that the training and policies are, at a minimum, compliant with the State’s materials.

Hogan Lovells’ employment attorneys have plenty of experience crafting policies and providing sexual harassment training in New York, and are available to help employers take the steps necessary to comply with New York’s new requirements.

 

The U.S. Department of Labor’s Wage and Hour Division (WHD) issued new FMLA medical certification and notice forms on September 4, 2018.  The forms are available here.  The new forms are substantively identical to the agency’s previous (now expired) forms, but they include the new expiration date—August 31, 2021—in the upper right hand corner.  Employers who use the government forms should start using the new forms, with the new expiration date, immediately.  Employers who use their own customized forms—for example, forms providing notices required under state or local leave laws such as the DCFMLA, or  forms tailored to the employer’s own policies—need not alter the content of their forms in light of the new federal forms, assuming the employer’s customized forms were otherwise compliant, given that WHD did not make substantive changes.