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.

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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…

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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…

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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”…

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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…

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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…

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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…

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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…

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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…

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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.…

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Employers Prevail in Two Recent Age Discrimination Cases In California

They say “40 is the new 30,” and in the U.S. labor market that appears to be the trend.  According to the Bureau of Labor Statistics, by 2024, the median age of the labor force will be 42.4, up from 37.7 in 1994. [Link] Yet under California’s Fair Employment and Housing Act, “40” is a protected class, just like race, gender or disability status. Government Code section 12940 et seq. prohibits an employer from taking adverse employment action against an employee who is 40 years or older because of that employee’s age.   In two recent appellate court decisions, employers were victorious in debunking claims that they engaged in unlawful age discrimination.   In Merrick v. Hilton Worldwide, Inc. [link], a 60-year-old former Hilton Hotel employee brought suit in federal court in San Diego claiming he was terminated from his position as Director of Property Operations at Hilton’s La Jolla Torrey Pines Hotel because of his age. Merrick was terminated as part of the hotel’s reduction-in-workforce that took place due to a decline in revenue. The company considered twenty-nine management level employees for lay off and chose Merrick because his position did not add revenue for the hotel (like food or beverage service), he had limited guest contact so the impact on guests was limited,…

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Starting July 1, 2017, Employers Must Provide New Employees with Notice of Protections for Victims of Domestic Violence, Sexual Assault, or Stalking

Existing law prohibits an employer from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for certain purposes related to addressing the domestic violence, sexual assault, or stalking. As of July 1, 2017, employers with 25 or more employees must now provide written notice of the rights and duties under the existing law. A recent bill amended Labor Code section 230.1 to include employer notice requirements and ordered the Labor Commission to develop a sample form for employers to use to comply. If an employer chooses not to use the form, the notice used must be substantially similar in content and clarity. Whatever form is used must include information explaining an employee’s right to take time off, right to reasonable accommodations, right to be free from discrimination and retaliation, and right to file a complaint. Although the rights under Labor Code section 230 for employees who are victims of domestic violence, sexual assault, or stalking have not changed, the new notice requirement imparts more responsibility on employers and thus warrants a refresher. Right to Time Off – Employees who are the victims of domestic violence, sexual assault, or stalking are permitted to take time off to: Seek medical attention; Obtain…

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A Brightside for Employers

Is the tide turning for Employers? There seems to be some good news on the horizon. The United States Department of Labor (DOL) appears to be contemplating changes that may help employers in the future on a few different topics including the salary requirement for employees who classify for federal overtime.  The DOL requested information on July 27, 2017 related to the exemption for employee minimum wage and overtime pay.  The request for information is an opportunity for the public to provide information that will help the DOL in formulating a proposal to revise related regulations. The Fair Labor Standards Act (FLSA) requires employers who do more than $500,000 in annual sales and are engaged in interstate commerce to pay their employees at least the federal minimum wage which is currently $7.25 per hour for all hours worked.  In general, interstate commerce refers to the sale, purchase or exchange of goods or money, or transportation of people or navigation of water between different states.  If the state where the employee resides has a minimum wage higher than $7.25 per hour, then that state’s minimum wage will apply with a few exceptions not discussed here. The FLSA also requires employers to pay their employees premium pay of time and a half for hours worked over forty…

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Keeping Your Private, Private & Your Public, Public.

“What do you mean public record, it’s in my private e-mail account?” If you work in an office subject to the California Public Records Act (CPRA), be prepared to hear this sentence uttered repeatedly in the coming years. The California Supreme Court recently determined that public business conducted by a public employee through that employee’s personal (and private) account is subject to CPRA requests. The CPRA allows the people of California to request public records (with some limitations) from public agencies. While often used to increase transparency as required by a functioning democracy, this process is often used by Plaintiffs as a means of obtaining documents before filing a lawsuit. In San Jose v. Superior Court (full opinion in the link) the Plaintiff requested documents from the City concerning redevelopment plans for its downtown; specifically, e-mails and text messages sent or received on private electronic devices used by the mayor, two city council members, and their staffs. In response, the City released communications made using public telephone numbers and e-mail accounts but did not release communications to or from employees’ personal accounts. The Court determined that it doesn’t matter how public business is conducted, using a private account doesn’t limit the scope of the CPRA. Therefore the City was ordered to produce the documents (if…

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April Showers Bring Employment Empowers

April is not only the month for Californians to fixate on taxes but this year it has been an active month of change in the employment arena. Changes have occurred that many Californians deem as socially necessary and morally correct, but will no doubt place a heavy burden on small businesses in the state.  California legislators proposed a $15 minimum wage initiative called “Fair Wage Act of 2016” (#15-0032) and alternative legislation was proposed to this bill, Senate Bill 3, which Governor Jerry Brown signed into law this month.  The signed alternative legislation still raises California’s mandatory minimum wage to $15 an hour but allows for an additional year to complete the task by the year 2022.  New York is the only other state to commit to such an increase to the minimum wage. Even the Governor appeared to question the economic rationale of his commitment but stood by this decision based on the fact that it morally made sense, indicating that individuals should be able to support their families based on the minimum wage. The legislation amends  Labor Code Section 1182.12 to now designate each incremental escalation for employers who employ 26 or more employees to increase the minimum wage by January 1, 2017 to $10.50. By January 1, 2018, the minimum wage would…

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California Appellate Court Holds Supervisor-Induced Stress Is Not a Disability

Employers in California with five or more employees must be concerned with both mental and physical disability discrimination allegations under the Fair Employment and Housing Act (FEHA).  The definition of mental disability is expanding.  Offering some hope to employers, however, California’s Third District Court of Appeal in Higgins-Williams v. Sutter Medical Foundation, 2015 Cal. App. Lexis 455 (May 26, 2015) found no disability where the plaintiff was diagnosed by her treating physician as having an adjustment disorder with anxiety resulting from dealing with Human Resources and her manager.  Sutter granted Plaintiff Michaelin Higgins-Williams leave under the California Family Rights Act (CFRA) and the Family Medical Leave Act (FMLA) based on this diagnosis, but she exhausted the maximum amount of leave she could take under these laws. Ms. Higgins-Williams then returned to work briefly.  She received a negative performance evaluation by her supervisor and alleged she was singled out and given an inappropriate amount of work.  Ms. Higgins-Williams claimed her manager grabbed her arm and yelled at her, after which she suffered a panic attack and left work, never to return. Sutter allowed Ms. Higgins-Williams five months leave of absence based on a variety of doctor’s notes and as an accommodation for her disability.  The doctor’s notes first stated that Ms. Higgins-Williams could come back to…

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Employers and Leave Laws

The amount of leave or accommodation employers must provide to pregnant employees is rapidly expanding as legislatures and courts at the federal, state and local level wrestle with how to accommodate working families. For example, the United States Supreme Court will hear Peggy Young v. United Parcel Service this session; a case involving theissue of whether an employer must provide a less strenuous job to a pregnant employee, when other workers with disabilities receive accommodations, instead of unpaid leave under the Pregnancy Discrimination Act.  This article provides a sampling of some of the laws in this arena. California is leading the way in expanding laws surrounding employees expecting children.  The state provides two types of pregnancy related leave both of which may be added together and used cumulatively.  Under California’s Pregnancy Disability Leave Law (“PDLL”), which is part of the Fair Employment and Housing Act (“FEHA”), an employee has unpaid pregnancy disability leave up to four months at any time during pregnancy, or after the child is born if the employee cannot work due to pregnancy, childbirth, or a related medical condition.  This leave includes time needed for prenatal care, morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or a related medical condition.  Pregnancy disability leave may be taken intermittently or on a reduced…

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New Paid Sick Leave Law in California

On September 10, 2014, California Governor Jerry Brown signed into law AB 1522, requiring a minimum of three paid sick days per year for employees who work 30 or more days in a calendar year. Under the law, workers may accumulate one hour of sick time for every 30 hours they work, to be capped at three days per year at the employers’ option.  The new bill sets minimum standards and specifically allows employers to be more generous with paid sick leave. New employees will be allowed to use their accrued sick days after 90 days of employment. Cities throughout the nation, including San Francisco and Seattle, have enacted similar regulations; however, California is only the second state behind Connecticut to enact such a law at the state level. The bill does not apply to airline flight crews, employees subject to collective bargaining agreements, or in-home health care providers. Proponents of the law (which is also called the Healthy Workplaces, Healthy Families Act of 2014) argue that the new bill will have a positive effect on the health of Californians by allowing sick employees paid time off to care for themselves without financial pressure, thus reducing recovery time and reducing the prospect of spreading sickness to others.  Opponents argue that this new law will be…

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California Supreme Court Decision Limits Remedies Available to Undocumented Workers in Employment Cases

The California Supreme Court recently issued an opinion limiting the remedies available to undocumented workers under The Fair Employment and Housing Act, California Government Code section 12940 et seq., (“FEHA”).  In Salas v. Sierra Chemical Co., the plaintiff provided a Social Security number and a resident alien card when he applied for a job with the defendant.  He signed a federal Immigration and Naturalization form I-9, under penalty of perjury.  He also signed an IRS withholding form W-4, using the Social Security number given to the employer.  During the course of his employment, he submitted a workers’ compensation claim for an alleged on duty injury.  He later sued Sierra Chemical Company for failure to reasonably accommodate a disability under the FEHA.  He also alleged that the defendant wrongfully denied him employment, in violation of public policy, and that he was retaliated against for filing a workers’ compensation claim and for being disabled. During the course of the litigation, the defendant investigated the authenticity of the documents plaintiff submitted to obtain employment with the defendant and learned that the plaintiff used another man’s Social Security number.  Sierra Chemical moved the trial court for summary judgment, arguing that is was entitled to judgment as a matter of law under the after-acquired evidence doctrine and the unclean hands…

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Ban the Box – Is Statewide Regulation of Private Employers Next?

New Law in California Expands “Ban the Box” Movement to all State and Local Agencies – Is Statewide Regulation of Private Employers Next? For employers looking for qualified job applicants, the prospective employee’s past history is in many respects the best predictor of how they will perform.  As employers, we want to know whether the applicant’s history evidences good work ethic, job dedication, and experience that is transferable to the position.  In many industries, the applicant’s criminal history is also an important part of assessing an applicant’s fitness for a particular position.  But a movement is sweeping the country that is changing the landscape for how public and private employers screen job applicants. The movement is generally known as “Ban the Box”.  It was conceived by an organization in San Francisco whose mission was to open doors for convicted felons seeking to reenter the job market after jail or prison.  (See bantheboxcampaign.org.)  The concept is simple – letting those with criminal convictions get their foot in the door and ultimately obtain gainful employment benefits society as a whole.  It is no surprise that ex-convicts who are unable to find jobs after being released from prison are more likely to re-offend than those who obtain work.  However, the realities facing employers in this litigious society should…

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Employer Beware: Managing Emerging Risks Presented By Obamacare

The Affordable Care Act, also known as Obamacare, was created with a central goal in mind, namely, to put consumers back in charge of their health care. Under the law, a new “Patient’s Bill of Rights” operates to afford the American people the stability and flexibility for healthcare choices.  Access to healthcare for all however, comes at a premium for businesses that are mandated to supply healthcare to its employees. One of the well-known provisions of the Affordable Health Care Act is the “employer mandate” which states that companies must provide health insurance coverage for employees or they will face government penalties.  Beginning in 2015, if an employer with fifty or more full-time employees fails to offer health care coverage to its employees, it will have to pay a $2,000 annual fine for each worker over the first thirty employees.   Companies with fewer than fifty full-time employees are exempt.  Employees who are not covered by their employers will be forced to obtain health insurance or face a tax penalty.  An exception to the general rule of the mandate is that an employer does not have to provide health insurance coverage for employees who log fewer than 30 hours per week on average. This part-time status exception has become a new loophole for creative employers who…

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