NLRB Reverses Course on Browning-Ferris Standard for Defining “Joint Employers”

Last Thursday, the NLRB overruled the Obama-era NLRB’s decision in Browning-Ferris Industries, a 2015 ruling that loosened the standard for determining how much control over employees is required before a business entity can be held liable for infractions of federal labor law as a joint employer. Prior to Browning-Ferris, for two or more entities to constitute joint employers of a workforce, they had to share the ability to control only the essential terms and conditions of employment like hiring, firing, and directing employees. Further, this control must have been direct and immediate, and must have actually been exercised before an entity would be found a joint employer. Browning-Ferris changed that to a standard where “two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” How much of a departure this was from the previous standard only became clear as Browning-Ferris was applied and interpreted in successive Board decisions. Under these decisions, the Browning-Ferris standard would consider as a joint employer any entity with even indirect or unexercised-but-reserved authority to control or affect “essential terms and conditions of employment” reaching beyond the basics of hiring, firing,…

Google Defeats Equal Pay Act Class Action – For Now

Last week, in Ellis v. Google, Inc. a California judge dismissed a class action lawsuit against Google brought on behalf of its female employees, alleging that Google violated the California Equal Pay Act (Labor Code §§ 1197.5, 1194.5) by systematically paying them lower wages than those paid to male employees performing “substantially similar work under similar working conditions.” The complaint also alleged that Google discriminates against its female employees by paying women less than men with similar skills, experience, and duties, by assigning and keeping women in “job ladders and levels with lower compensation ceilings and advancement opportunities,” and promoting women at a slower rate than it does men. While claims of gender bias in tech are not new, this is the first such case brought against Google. The lawsuit was dismissed on the grounds that the allegations of the complaint were not specific enough to justify a class-action. In other words, by purporting to bring the action on behalf of “all women employed by Google in California” the complaint was simply too broad. Class actions require that the individual named plaintiffs bring claims that are representative of the group as a whole. The defendant’s liability must be able to be determined by issues common to all class members. Here, because plaintiffs defined their class…

Holiday Party Tea

Is Your Office Holiday Party On The Chopping Block?

Major news outlets like Time Magazine and the Chicago Tribune have recently reported that one of the fall outs of the recent sexual harassment scandals is that many companies have decided to forego their annual holiday parties.  At the very least, some companies are cutting out the free flow of alcohol at their annual festivities since alcohol is thought to be a risk factor for inappropriate behavior. Before you cancel your group’s restaurant reservation or caterer and officially kill the holiday spirit for your employees, consider the employer’s legal obligations for employee misconduct at office functions and some suggestions for how to ensure your employees can safely and appropriately celebrate the holidays with their colleagues. California’s Fair Employment and Housing Act imposes two standards of liability for sexual harassment, depending on whether the alleged harasser is a co-worker or a supervisor.  An employer is liable for harassment by a non-supervisory employee if the employer knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action.  (California Government Code section 12940, subdivision (j)(1).)  If a supervisor engages in sexual harassment, however, an employer is strictly liable for his or her conduct, which means liability does not rest on whether the employer was negligent. The employer can only avoid absolute…

Barber Pole, Haircut, Cosmetology

A Fresh Cut on Commission-Based Pay in Cosmetology

A recent change to the California Labor Code modifies the definition of commission pay for employees that are licensed pursuant to the Barbering and Cosmetology Act. Senate Bill 490, introduced in February 2017, adds section 204.11 to the California Labor Code, authorizing beauty salon employees to be paid commission if certain requirements are met. The requirements kick in when the employee, who must be licensed pursuant to the Barbering and Cosmetology Act is being paid for providing services where such license is required. These cosmetologists can agree to be compensated by percentage or flat rate sum commission in addition to a base hourly rate if the following requirements are met: The employee’s base hourly rate is at least two times the state minimum wage rate in addition to commissions paid; and The employee’s wages are paid at least twice during each calendar month on a day designated in advance by the employer as the regular pay day. With this new compensation option, employers will pay the break times based upon two times the minimum wage amount, which will lessen the administrative burden when compared to piece rate compensation. For example, under the new law, a salon employer could enter into a pay agreement such as the following: Salon owner Sweeney Todd agrees to pay employee…

Old school clock for punching in and out of work

Tick Tock: What’s the Unit of Measure for Minimum Wage Under the Fair Labor Standards Act

On November 15, 2017, the Ninth Circuit Court of Appeals issued an opinion of first impression in the Circuit regarding minimum wage determination under the Fair Labor Standards Act (FLSA). The panel affirmed a lower court’s decision in favor of Xerox in an action brought by customer service representatives who worked at call centers run by Xerox. The Ninth Circuit followed suit with the Second, Fourth, Eighth and D.C. Circuits, holding that the relevant unit of time for determining minimum wage compliance under the FLSA is the workweek as a whole instead of each individual hour within the workweek. See the opinion here. Xerox had a complex payment plan where employees earned different rates depending on the task and time spent on that task. Tasks outside those Xerox features in the payment plan had no specific designated rate. Hours were tallied at the end of the workweek under both categories and if the resulting hourly wage equaled or exceeded minimum wage, no additional payment was given. If the ratio falls below minimum wage, subsidy pay is given to employees to bump the average hourly wage up to minimum wage. The subsidy would ensure the appropriate hourly minimum wage for each workweek. The plaintiffs-appellants in the matter argued that the FLSA standard for measuring compliance is…

Gavel on a stack of one hundred dollar bills Murphy, Campbell, Alliston & Quinn

The EEOC’s Performance Report is a Cautionary Tale for Employers

The Equal Employment Opportunity Commission (EEOC) just released its performance report for the 2017 fiscal year. The big take away is that while the EEOC has whittled down its inventory of unresolved charges to the lowest level in 10 years, there were still over 84,000 new charges filed from nearly 700,000 calls and complaints. Additionally, with a lower inventory of unresolved charges, it appears the EEOC has been able to invest more resources in turning charges into lawsuits. The EEOC filed 184 lawsuits, more than double the number of suits filed in the previous fiscal year. All told the EEOC recovered nearly half a billion dollars from workplace discrimination claims. As the saying goes an ounce of prevention is worth a pound of cure, so feel free to contact our friendly employment law attorneys for best practices on how to protect your business.

Fresh Off the Governor’s Desk: New Slate of Employment Laws for California Employers

Employers take note: a new slate of employment laws were signed into California law this month, with some taking effect as soon as January 1, 2018. Read on below to see how a few of these new developments may affect your business.   AB 450: Employers Prohibited from Consenting to ICE Searches   Signed by Governor Brown on October 5th, AB 450 prohibits California employers from voluntarily consenting to federal Immigration and Customs Enforcement (ICE) officers’ requests to search a workplace.  Like other searches conducted by government officials, workplace searches conducted to enforce federal immigration law require either a judicial warrant or consent to search.  AB 450 will remove the latter option, prohibiting employers from consenting to a search of any non-public premises or employee records and forcing immigration officials to pursue a judicial warrant in each case.   As part of a broader effort to make California a “Sanctuary State,” AB 450 is intended to frustrate the Trump administration’s more robust enforcement of federal immigration law.  However, in AB 450’s effort to protect undocumented workers and their employers from the hazards of immigration enforcement, the law puts employers in a tight spot between opposing state and federal interests.   A first-time violation will penalize an employer with a $2,000 to $5,000 civil penalty, which…

The EEOC’s Harassment Prevention Efforts Should Be Highlighted In The Wake of The Harvey Weinstein Debacle

The headlines in the news these last two weeks involving Hollywood producer Harvey Weinstein has put the spotlight on the issue of sexual harassment in the workplace.  But the Equal Employment Opportunity Commission (EEOC) has been attempting to focus our attention on the issue of workplace harassment for over a year now, when it issued a study of harassment in the workplace, in an effort to “reboot workplace harassment prevention efforts.”  The “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” (“the Report”) came out in June 2016, finding that workplace harassment remains a persistent problem and too often goes unreported.   The Select Task Force consisted of two EEOC commissioners as well as outside experts from employer, employee, human resources, academic, and other communities. The focus of the report, authored by co-chairs Chai R. Feldblum and Victoria A. Lipnic, was unwelcome or offensive conduct based on a protected characteristic under employment anti-discrimination law.   The Report noted some interesting statistics regarding the prevalence of harassment-based complaints. In 2015, the EEOC received approximately 28,000 charges that alleged harassment from employees working for private or state or local government employers, and 6,741 charges from federal government employees. Broken down by protected characteristic, sex-based harassment was most prevalent in…

Federal Proclamation Effect on The Status of Employment Discrimination Laws in California

On October 4, 2017, Attorney General Jeff Sessions announced that under his interpretation of Title VII, gender identity and transgender status are not protected. According to Attorney General Sessions, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The phrasing causes some pause, given that, in 1998, the United States Supreme Court held in Oncale v. Sundowner Offshore Services that Title VII also applies to harassment between members of the same gender. The Justice Department recently made the same argument with respect to sexual orientation at oral argument before the Second Circuit in Zarda v. Altitude Express. This is a significant departure from the Obama Administration as well as the current position of the Equal Employment Opportunity Commission, which interprets Title VII to prohibit such discrimination. While this topic continues to be debated, employers may be struggling to confirm they are in compliance with the ever-evolving legislation. Background Title VII of the Civil Rights Act of 1964, prohibits, in relevant part, discrimination and harassment “because of […] sex.” Title VII does not, however, explicitly prohibit discrimination based on sexual orientation, gender identity, transgender status, or gender expression. Until recently, Circuit Courts of Appeal unanimously interpreted the term “sex”…

Employment Discrimination on the Basis of Sex is Prohibited by Title VII of the Civil Rights Act, 42 U.S.C. §2000e(k).

A few weeks ago, the 11th Circuit of the United States Court of Appeals upheld a favorable jury verdict on behalf of a former Alabama police officer under the Pregnancy Discrimination Act (“PDA”) and the Family and Medical Leave Act (FMLA). The officer was working as an investigator on the narcotics task force when she became pregnant. Her supervisor told her on more than one occasion she should take only six weeks of FMLA leave however, the officer took twelve weeks of FMLA leave.   Prior to taking leave, the officer received a performance review which “exceeded expectations.”  However, on her first day back from leave she was written up. Eight days after returning from leave the officer was reassigned which resulted in losing her vehicle and weekends off as well as receiving a pay cut and different job duties. She also had to start wearing a ballistic vest all day as a patrol officer. She previously was not required to wear one in the narcotics task force.   Before beginning the patrol division, the officer took leave after being diagnosed with postpartum depression. The officer’s doctor wrote a letter to the Chief recommending she be considered for alternative duties because the ballistic vest she was now required to wear on patrol duty was restrictive and…