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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…

A New Era of Salary Transparency Could Lead to Headaches for Employers

There has been a major culture shift in this country in the way we discuss pay; once a subject rarely discussed will become easily accessible on the internet at least with respect to larger companies. California’s Gender Pay Transparency Act, Assembly Bill (AB) 1209, if signed by Governor Brown this October would require private employers with 500 or more employees to compute the wage differences by gender for exempt employees and board members located in California and file a report with the California Secretary of State who would then publish the information on a public website.  AB 1209 has passed both houses and is on its way to Governor Jerry Brown’s desk to be signed or vetoed. If signed, the Act would require employers to collect and compute the difference between wages of male and female exempt employees in California using the mean and median wages in each job classification or title; the difference between the mean and median wages of male board members and female board members located in California, and the number of employees used for these determinations and report this information every two years beginning January 1, 2020. The proponents of AB 1209 argue that transparency requirements increase awareness of pay gaps and result in shrinking the gaps. Opponents including the California…

From Breast Milk to Salary History: San Francisco Reminds Us that Employment Law in California Varies County to County

San Francisco is known for mission burritos, the golden gate bridge, and some of the most progressive employment laws in the nation. That last point was proven twice over in recent months as Mayor Ed Lee signed two ordinances. The first sets forth requirements for employer-provided lactation locations at the work site. The second goes above and beyond the California Equal Pay Act in prohibiting employers from asking about and using employees’ salary history. Lactation in the Workplace Ordinance Employers in the City and County of San Francisco already had an obligation under California law to ensure that every employee seeking to pump breast milk at the workplace has a reasonable time and place to pump. Effective January 1, 2018, San Francisco will take that requirement a step further and will require employers to ensure the pumping location is: (1) safe, clean, and free of toxic or hazardous materials, (2) has a surface for placing a breast pump and personal items onto, (3) has seating, and (4) access to electricity. Further, employees must have access to a refrigerator and sink in “close proximity to the employee’s work area.” The ordinance does have an express exemption when the employer shows that the requirements would “impose an undue hardship by causing the employer significant expense or operational…

Overtime Controversy Over, For the Time Being

Last week, a federal judge declared unlawful the Obama-era Department of Labor rule that attempted to broadly redefine the class of workers eligible for overtime pay across the United States.  The rule was controversial from its inception, but that controversy has, for now, come to a close.   The final rule itself, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” was promulgated May 23, 2016, for the purpose of updating and specifying which U.S. workers would and would not be exempt from the federal overtime pay requirements established by the Fair Labor Standards Act of 1938 (“FLSA”).   In addition to establishing overtime pay requirements, the FLSA exempts employers from paying overtime to “any employee employed in a bona fide executive, administrative, or professional capacity.”  Commonly referred to as the “EAP” exemption, this provision’s specifics were left by Congress to be defined and determined by the U.S. Department of Labor.   A 2004 regulation, promulgated by the Bush administration and still currently in effect, determines the class of exempt employees based on a three-part test. It classifies exempt employees as those (1) paid on a salary basis, (2) over a minimum salary level, (3) who perform executive, administrative, or professional capacity duties.  The 2004 rule sets the minimum salary…

Ninth Circuit Affirms Summary Judgment for BNSF Railway Company in FEHA Case

BNSF Railway Company recently obtained a decisive victory in the Ninth Circuit Court of Appeals, with the Court affirming a grant of summary judgment in its favor on an employee’s FEHA claim. The case, Alamillo v. BNSF Railway Co., was decided August 25, 2017, and underscores the importance of the three-step burden-shifting analysis for employment discrimination cases set forth by the Supreme Court in McDonnel Douglas Corp. v. Green.  In Alamillo, not only was the plaintiff unable to establish a prima facie case of discrimination, the court found that even if he had been able to do so he had presented no evidence that the employer’s stated non-discriminatory reasons for its employment actions were pretextual.   The case is interesting because Alamillo, an “extra board” or on-call locomotive engineer, was subjected to discipline for missing calls to work before he obtained a diagnosis of obstructive sleep apnea, which he then claimed explained his failure to hear and answer his employer’s calls to his cell phone. The district court granted summary judgment to BNSF, concluding that BNSF could not have discriminated against Alamillo based on his disability at a time when Alamillo had no diagnosis. The Ninth Circuit agreed, pointing out that the FEHA prohibits employers from taking adverse employment actions against an employee because of…

Snaplications and Legal Implications

This summer McDonald’s has teamed up with snapchat to hire 250,000 workers across the United States. (See Engadget.com.) For those who are not aware, Snapchat is an image messaging and multimedia mobile application. The idea behind the snaplication is that an interested snaplicant would video themselves and send it to the company. In this instance once videos are reviewed McDonald’s will send a link to its application page also within the app for the snaplicant to formally apply for a job. As noted in the article, the Snaplication will not take the place of a one-on-one interview but they will be considered.   The idea of a snaplication poses general questions on its legal implications in the employment hiring arena.  If companies begin using snaplications would this potentially amount to a rise in future litigation as to pre-hiring discrimination?   Imagine the potential for future claims. A snaplicant will have a documented video of their snaplication. This video would later be valuable in weighing future claims of discrimination. They say a picture is worth a thousand words, so imagine the force of a video. The idea of using snaplications may give ammunition to claims that may ordinarily not have merit.   Think for example of a raced based claim of discrimination in the hiring process.…