OSHA has issued a fact sheet on providing guidance on protecting workers in non-healthcare/non-laboratory settings from exposure to Ebola virus, and from harmful levels of chemicals used for cleaning and disinfection. Read more here.
The California Chamber of Commerce has released a fact sheet on AB 1897 (Hernandez-D-West Covina) which is a new law that will impose liability on employers who contract for labor and services. The law creates new liability for employers who contract out for labor and services for the wage and hour violations or workers’ compensation violations of subcontractors. Read more here.
Wal-Mart Stores East Will Pay to $72,500 for Alleged Failure to Accommodate Applicant with End-Stage Renal Disease
Wal-Mart Stores East, L.P., will pay $72,500 and provide significant equitable relief to settle a federal disability discrimination lawsuit, according to the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, an assistant store manager at the Walmart store in Cockeysville, Md., offered Laura Jones a job as an evening sales associate, contingent on Jones passing a urinalysis test for illegal drugs. After Jones advised that she cannot produce urine because she has end-stage renal disease, the assistant store manager told her to ask the designated drug testing company about alternate tests, the EEOC said. According to the complaint, Jones went to the drug testing facility the same day and learned that the facility could do other drug tests if the employer requested it. Jones relayed this information to the Walmart assistant store manager, but management refused to order an alternative drug test. Jones's application was closed for failing to take a urinalysis within 24 hours. Read more here.
California’s Department of Industrial Relations (DIR) has set the new exemption rates for 2015. Labor Code Section 515.5 provides that certain computer software employees are exempt from the overtime requirements stipulated in Labor Code Section 510 if certain criteria are met. One of the criteria is that the employee's hourly rate of pay is not less than the statutorily specified rate, which the department is responsible for adjusting October 1st of each year to be effective on January 1st of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Effective January 1, 2015, the rates are as follows: the computer software employee's minimum hourly rate of pay exemption has been increased from $40.38 to $41.27; the minimum monthly salary exemption has been increased from $7,010.88 to $7,165.12; and, the minimum annual salary exemption has been increased from $84,130.53 to $85,981.40. Read more here.
California based Braun Electric Company will pay $82,500 and furnish other relief to settle a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). Braun Electric provides industrial electrical services for the oil and gas industry throughout California's San Joaquin Valley. According to the EEOC's suit, a male manager at Braun's Belridge, California, location continually subjected female workers to a hostile work environment since 2010. According to the EEOC, the manager made daily grotesque remarks of a sexual nature to female subordinates and made explicit sexual propositions on a continual basis. Braun's management failed to adequately address reports of harassment, and supervisors failed to report incidents of harassment they witnessed. One female employee was forced to quit as a result of the ongoing hostile work environment, according to the EEOC. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) will hold a live Twitter chat on Tuesday, Oct. 28, from 2:00 to 3:00 pm (EDT). In commemoration of National Disability Employment Awareness Month (NDEAM), the interactive online forum will focus on the federal government as a model employer of people with disabilities. EEOC Chair Jenny Yang and Commissioner Chai Feldblum will answer questions during the hour-long chat. Members of the public are encouraged to participate by submitting questions using the hashtag #EEOC4NDEAM. The EEOC invites queries regarding the hiring, promotion and retention of people with disabilities in the federal government and suggestions on how agencies can increase the number of people with disabilities in the federal workforce. Read more here.
The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against FedEx Ground Package System, Inc., (FedEx Ground) alleging that the company discriminated against a large class of deaf and hard-of-hearing package handlers and job applicants for years. According to the EEOC, FedEx Ground failed to provide needed accommodations such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants. The company also allegedly failed to provide such accommodations during staff, performance, and safety meetings. Package handlers physically load and unload packages from delivery vehicles, place and reposition packages in FedEx Ground's conveyor systems, and scan, sort and route packages.
The California Court of Appeal, 4th District has held that an arbitration agreement did not provide for class arbitration because it did not demonstrate a clear intent to arbitrate such claims. The case involved Network Capital Funding Corporation (Network Capital) (the employer) who filed a declaratory relief action alleging its arbitration agreement with Erik Papke (the employee) required Papke to arbitrate his wage and hour claims on an individual basis rather than the classwide basis as he sought in his pending arbitration proceeding. Papke petitioned the trial court for an order compelling the employer to submit its claims to arbitration, arguing that the broad language in the parties’ arbitration agreement required the arbitrator, not the court, to decide whether the agreement authorized class arbitration. The trial court disagreed, holding it must decide the issue of class arbitration. The trial court then held the agreement did not allow class arbitration.
The principal of Beverly Hills High School -- the inspiration for “90210”—has filed a lawsuit against the school board alleging race discrimination. Carter Paysinger alleges that the all-white Beverly Hills School Board has targeted him because he's Black and that one member told him, "One of the problems that you have is that you don't look like what a principal of Beverly Hills High School should look like." According to Paysinger, another member once said, "It would be easier if he had lighter skin ... and he looks more intelligent when he wears glasses." Paysinger has worked for the district for 4 decades, as a longtime football coach who became principal in 2010. However, Paysinger was investigated by the L.A. County D.A. for wrongfully taking money from students who attended a summer sports camp. The camp was privately funded but was held on campus. Paysinger said he had been taking a fee for 15 years and everyone knew and no one complained. Ultimately the D.A. rejected the case. Paysinger alleges that Board has made a decision to rid the school of all minorities. Read more here.
Walmart has cut health benefits to part-time employees who work less than 30 hours per week. The employees will receive a “personal letter” explaining their options, including the possibility of a government plan, private health insurance, or coverage through a spouse’s plan, if available. All current part-time health care benefits will remain intact until the end of the year. According to a Walmart spokesperson, “In 2012, after passage of the Affordable Care Act, we required new associates work 30 hours or more per week to be become eligible for our health care plan….At that time, we continued offering coverage to previously eligible associates who worked fewer than 30 hours. But today, the health care landscape has changed, there’s a much wider selection of affordable quality health care options in the marketplace.” Read more here.
Kaiser Permanente, the largest managed care organization in the United States, will pay $75,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that a food service worker at Kaiser's San Diego facility suffers from hydrocephalus, a medical condition which causes difficulties with memory, dizziness and concentration. Upon hire, the worker requested additional training time and the assistance of a temporary job coach to effectively learn the job and perform the required job duties. A non-profit organization in San Diego specializing in assisting people with disabilities - Toward Maximum Independence (TMI) - was available to provide the temporary job coaching services free of charge to Kaiser. However, according to the EEOC, Kaiser terminated the worker rather than grant the reasonable accommodation request. Read more here.
HiLine Electric Co., a Dallas-based industrial supply business, will pay $210,000 and provide other relief to settle an age discrimination suit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, an internal recruiter informed the agency that company executives provided her a form with a list of bulleted criteria/considerations for position candidates. This form included a printed text box, referred to as the "HiLine box," listing an age-based hiring consideration. Upon receipt of additional information regarding instructions for screening, the EEOC alleged that the criteria HiLine used resulted in the non-selection of applicants who were over 50 and who appeared to be qualified for the position. Eight applicants, who were over 50 years of age when they unsuccessfully sought employment as territory managers, were identified as having been affected by the company's practice. "Avoiding cookie-cutter workforces based on an age limit is something we hope all employers will guard against," said EEOC Supervisory Trial Attorney Suzanne Anderson. Read more here.
The City of Berkeley has increased its minimum wage as follows: October 1, 2014-$10.00; October 1, 2015-$11.00; October 1, 2016-$12.53. For nonprofit corporations, the minimum wage increase does not take effect until October 1, 2015, at which time the minimum wage will be $11.00 per hour. Read more here.
The U.S. Supreme Court has agreed to review EEOC v. Abercrombie & Fitch Stores, Inc., a case that involves 17-year-old Samatha Elauf, a Muslim who applied for a job with Abercrombie, but was allegedly turned down because she wore a hijab (religious head scarf). In 2008, Ms. Elauf applied for a job with Abercrombie and was granted an interview. She wore the hijab to the interview. Although Ms. Elauf performed well enough in the interview to be hired, the assistant manager who interviewed her asked the district manager about the hijab and was advised that it was not consistent with Abercrombie’s “look policy.” Ms. Elauf was not offered a job and the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Abercrombie. Elauf initially prevailed, however, the 10th Circuit reversed, on the basis that Elauf failed to advise Abercrombie prior to the hiring decision that she wore the headscarf due to her religious beliefs. Read more here.
Wells Fargo & Company has agreed to pay $295,000 to resolve a discrimination/retaliation charge filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, Wells Fargo disciplined and terminated a Minneapolis Wells Fargo employee in retaliation for complaining of differential treatment based on her race and national origin. The employee allegedly reported to the Wells Fargo human resources department that she was being subjected to differential treatment and that her supervisor told her not to speak Spanish during her non-duty time. Shortly thereafter, Wells Fargo allegedly initiated discipline and ultimately terminated the employee for practices other employees regularly engaged in without discipline. In addition to the monetary relief, the conciliation agreement requires Wells Fargo to conduct four hours of annual training for all managers and supervisors in the personal insurance business division where the employee worked and to distribute to all employees annually an electronic mail message affirming its commitment to diversity, multilingual ability and the use of languages other than English in the workplace. Wells Fargo has all agreed to report to the EEOC all allegations of discrimination or retaliation annually during the term of the three-year agreement. Read more here.
Assembly Bill 1710, authored by Assembly members Roger Dickinson (D-Sacramento) and Bob Wieckowski (D-Fremont), has been signed into law by Governor Brown. AB 1710 is intended to “protect consumers in the event of a business data breach.” Recently, JP Morgan, Target, Neiman Marcus, Home Depot, and other large companies, have experienced massive data breaches that compromised millions of customers’ credit and debit card numbers. As a result, the consumers of these companies will need to monitor their personal information for years to come. To address this ongoing concern, AB 1710: (1) Requires the source of the breach to offer identity theft prevention mitigation services at no cost to the affected person for no less than 12 months if a SSN or driver’s license number is breached; (2) Prohibits the sale of social security numbers, except when part of a legitimate business transaction; (3) Provides that existing personal information data security obligations apply to businesses that maintain personal information, in addition to those who own or license the information. Read more here.
The U.S. Supreme Court has denied review of seven petitions arising from challenges to same-sex marriage bans. As a result, the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly, thereby clearing the way for same-sex marriages in those states and any other state with similar bans in those circuits. Virginia Attorney General Mark Herring (who had declined to defend his state’s ban on same-sex marriage) indicated this morning on Twitter that, according to the U.S. Court of Appeals for the Fourth Circuit, the mandate in the Virginia cases would issue at 1 p.m., at which point “marriages can then begin.” The Supreme Court had issued the first round of orders from the September 29 Conference last Thursday, adding eleven new cases to its docket for the new Term. Many had anticipated that one or more of the same-sex marriage petitions might be on that list, but the Court did not act on any of them at the time. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit alleging that Flambeau, Inc., a based plastics manufacturing company, violated federal law by requiring an employee to submit to medical testing and assessment in connection with a "wellness program" or face dire consequences. Specifically, according to the EEOC, the "wellness program" allegedly required that employees submit to biometric testing and a "health risk assessment," or face cancellation of medical insurance, unspecified "disciplinary action" for failing to attend the scheduled testing, and a requirement to pay the full premium in order to stay covered. The EEOC also alleges that when an employee did not complete the biometric testing and health risk assessment, Flambeau cancelled the employee's medical insurance and shifted responsibility for payment of the entire premium cost to the employee. The EEOC contends that the biometric testing and health risk assessment constituted "disability-related inquiries and medical examinations" that were not job-related and consistent with business necessity as defined by the Americans with Disabilities Act (ADA). The EEOC brought suit after first attempting to reach a pre-litigation settlement through its conciliation process. Read more here.
Governor Jerry Brown has signed SB270, legislation which provides for the nation's first statewide ban on single-use plastic bags at grocery and convenience stores. A national coalition of plastic bag manufacturers immediately said it would seek a voter referendum to repeal the law, which is scheduled to take effect in July 2015. Pursuant to SB270, plastic bags will be phased out of checkout counters at large grocery stores and supermarkets and convenience stores and pharmacies in 2016. The law does not apply to bags used for fruits, vegetables or meats, or to shopping bags used at other retailers. It allows grocers to charge a fee of at least 10 cents for using paper bags. Read more here.
Governor Brown Signs New Legislation Regarding Employer Liability for Workers of Independent Contractors
Governor Brown has signed AB 1897, which holds employers liable for violations of law related to the employees of independent contractors hired by the employer, including violations related to workers’ compensation, wage and hour, and occupational health and safety requirements. Numerous industries will be impacted by the legislation including construction, agriculture, healthcare, technology, foodservice, manufacture and retailers. The bill creates new Labor Code section 2810.3, and applies to most companies with 25 or more employees (referred to as the “client employer”) which obtain workers from companies that provide workers (referred to as “labor contractors”). Employers are liable pursuant to the new legislation even if they are unaware that violations were occurring. Read more here.
The U.S. Employment Opportunity Commission (EEOC) has filed a lawsuit against Harrison Poultry, Inc. a poultry hatchery located in Bethlehem, Georgia, alleging that the company unlawfully terminated an employee with a disability who was on approved leave. According to the EEOC's lawsuit, Harrison Poultry terminated nightshift manager Ronnie Smith rather than granting his request for a reasonable accommodation after he was diagnosed with emphysema. Smith was terminated days after he requested a 12-day extension to his vacation leave in order to comply with his physician's medical restriction that he not work during that time. The agency alleges Smith was replaced by a person who was hired approximately three months after his discharge. The EEOC is seeking back pay, compensatory and punitive damages and injunctive relief. Read more here.