The Fair Chance Ordinance (FCO) took effect on August 13, 2014, in San Francisco. The ordinance regulates employers’ and City contractors’ use of arrest and conviction records when making employment decisions regarding individuals who perform, or who will perform, work in San Francisco. San Francisco’s OLSE recently issued FAQs providing more information on the new ordinance.
Attorney General Holder Directs DOJ to Include Gender Identity Under Sex Discrimination Employment Claims
Attorney General Holder has announced that the Department of Justice (DOJ) will take the position in litigation that the protection of Title VII extends to discrimination claims based on an individual’s gender identity, including transgender status. As a result, all DOJ component heads and United States Attorneys have been advised in a memo that the department will no longer assert that Title VII’s prohibition against discrimination based on sex excludes discrimination based on gender identity per se, including transgender discrimination, reversing a previous DOJ position. Title VII makes it unlawful for employers to discriminate in the employment of an individual “because of such individual’s…sex,” among other protected characteristics. The DOJ does not have authority to file suit against private employers. Read more here.
A federal judge in Chicago rejected a proposed $75 million class-action head injury settlement with the NCAA asserting that it is too unwieldy and potentially underfunded. The judge urged both sides to continue negotiations. Pursuant to the settlement, the NCAA would toughen return-to-play rules for players with concussions and create a $70-million fund to test current and former athletes in contact and non-contact sports for brain trauma. It also would set aside $5 million for research. The proposal was intended to settle a number of class-action lawsuits alleging that the NCAA failed to protect athletes against head trauma. Read more here.
Two former employees of Sony Pictures Entertainment filed a class-action lawsuit alleging the company failed to properly secure sensitive employee data. The recent hacking of Sony’s information system has allegedly resulted in the release of employee data including Social Security numbers, salary history, birth dates, and medical information. The former employees assert that Sony had a duty to protect their data and to secure medical information under California law. According to the lawsuit, the breach is an “epic nightmare, much better suited to a cinematic thriller than real life… Put simply, Sony knew about the risks it took with its past and current employees’ data…Sony gambled, and its employees—past and current—lost.” The two former employees in the lawsuit, Michael Corona and Christina Mathis, allege that their Social Security numbers were released, and Corona says his salary history and reason for resigning were also exposed. Read more here.
In a recent case, Purple Communications, Inc., et al., the National Labor Relations Board (NLRB) considered the right of employees, pursuant to section 7 of the National Labor Relations Act (NLRA), to communicate with one another at work regarding union organization, using the employer's email system. According to the NLRB, the workplace is ‘“uniquely appropriate’ and the ‘natural gathering place’ for such communications and the use of email as a common form of workplace communication has expanded dramatically in recent years.” Thus, the NLRB ruled that employers who have chosen to provide employees with access to their email systems must permit those employees to use email for “statutorily protected communications,” specifically unionization efforts. Read more here.
The National Labor Relations Board has issued a final rule amending its representation–case procedures resolving representation disputes. The new rule is intended to “modernize and streamline” procedures, and will be published in the Federal Register on December 15, and take effect on April 14, 2015. The final rule:
- Provides for electronic filing and transmission of election petitions and other documents;
- Ensures that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
- Eliminates or reduces unnecessary litigation, duplication and delay;
- Adopts best practices and uniform procedures across regions;
- Requires that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance a fair and free exchange of ideas by permitting other parties to the election to communicate with voters about the election using modern technology; and
- Allows parties to consolidate all election-related appeals to the Board into a single appeals process. Read more here.
Justrite Manufacturing Company, a Mattoon, Ill.-based manufacturer of storage, handling and security products, has agreed to pay $418,000 to settle disability discrimination complaints filed with the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC’s lawsuit, Justrite discriminated against disabled employees in that it refused to engage in an interactive dialogue with employees to find reasonable accommodations, denied reasonable accommodations outright, and/or retaliated against those who requested accommodations or complained about discrimination.John P. Rowe, Director of the EEOC’s Chicago District office, commented that "The reasonable accommodation process works best when both the worker and the employer engage in a good-faith, collaborative discussion to find a mutually beneficial way for the disabled employee to perform the job." Justrite denied any wrongdoing, but agreed to conciliate the matter with the EEOC. Read more here.
The Supreme Court has ruled unanimously that a temp agency was not required to pay workers at Amazon warehouses for the time they spent waiting to go through a security screening at the end of the work day. The workers say the process, meant to prevent theft, can take as long as 25 minutes. The case involved Jesse Busk, who worked in an Amazon warehouse in Las Vegas, and Laurie Castro, who worked at one in Fenley, Nevada. They sued Integrity Staffing Solutions, the temp agency, seeking to represent a class of workers and to be paid for the time it took to remove their wallets, keys and belts and to pass through metal detectors, which they alleged could take as long as 25 minutes. According to the plaintiffs, the screenings would not have taken long had the agency added more security screeners or staggered the ends of work shifts. They alleged that in practice, the waits approached half an hour. Justice Clarence, writing for the court, said the screenings were not “integral and indispensable” to the workers’ jobs, which involved retrieving products from warehouse shelves and packaging them for delivery to Amazon’s customers. That meant, he said, that no extra pay was required. The decision was a significant loss for workers challenging the security checks, which are common among retailers. Read more here.
DOL Publishes Final Rule Prohibiting Discrimination on the Basis of Sexual Orientation and Gender Identity
On July 21, 2014, President Obama signed Executive Order 13672 extending workplace protections to employees in the federal contracting workplace on the bases of sexual orientation and gender identity. This Executive Order amended Executive Order 11246 and directed the Secretary of Labor to prepare regulations implementing the new protections. As a result, on December 3, 2014, the Department of Labor (DOL) announced a Final Rule changing OFCCP’s regulations so that they prohibit discrimination based on, and require treatment of applicants and employees without regard to, sexual orientation or gender identity. The regulations, which are effective 120 days from date of publication in the Federal Register, apply to federal contractors who hold contracts. California law already prohibits discrimination on the basis of sexual orientation and gender identity pursuant to the Fair Employment and Housing Act (FEHA), which applies to employers with five or more employees. Read more here.
Many employers and employees have questions about California’s new paid sick law, which is in effective as January 1, 2015, although the right to accrue and take paid sick leave pursuant to the new law is not in effect until July 1, 2015. In response to these questions, California’s Labor Commissioner has released new FAQs, which are located here.
U.S. Supreme Court Considers When a Disabled Pregnant Employee Must be Accommodated Pursuant to the PDA
On December 3, 2014, the U.S. Supreme Court heard oral arguments in Young v. United Parcel Service, which involves alleged pregnancy discrimination. Pursuant to the Pregnancy Disability Act (PDA) employers must accommodate pregnant employees who are unable to work due to a pregnancy related disability. The PDA provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes …as other persons not so affected but similar in their ability or inability to work.” The question presented to the Court in Young was “Whether, and in what circumstances, an employer that provides work accommodations to non- pregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” The Young case involves Peggy Young, a longtime part-time driver for UPS, who became pregnant. Subsequently, Ms. Young's mid-wife restricted her to 20 pounds of lifting (her job required up to 70 pounds). Young alleged that she requested light-duty work limiting her package assignments to 20 pounds or less, but UPS refused to grant the accommodation, because such accommodations were only granted to those injured on the job or legally disabled.
Maxim Healthcare Services, Inc., a nationwide staffing service for nurses and other health care professionals, will pay $75,000 to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, Maxim Healthcare Services refused to hire a candidate for an assignment because that individual was HIV-positive. The position involved sitting with patients at a U.S. Department of Veterans Affairs (VA) medical facility. Maxim Healthcare made a conditional job offer to the candidate, which was contingent on completion of a health status certification. The EEOC charged that Maxim later refused to hire the candidate after receiving his medical evaluation, which cleared him to work but indicated his HIV-positive status. Read more here.
In a troubling development for employers, the California Supreme Court has denied a petition to review Cochran v. Schwan’s Home Service, Inc., Court of Appeal of California, Second Appellate District, Division Two, No. B247160 (August 12, 2014). In that case, the appellate court ruled that employers must reimburse employees for the “mandatory” use of personal cell phones pursuant to Labor Code section 2802, which requires that employers reimburse employees for necessary business expenses. Employer reimbursement must be provided even if the employee did not incur an extra expense on his or her cell phone plan as a result of the work related use; for example, the employee has an unlimited minutes/text messages plan. The California Supreme Court also denied a request to depublish the decision. Read more here.
Paloma Blanca Health Care Associates, LLC, d/b/a Paloma Blanca Health and Rehabilitation, which owns and operates a health and rehabilitation center in Albuquerque, has agreed to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) for $145,000. According to the EEOC's lawsuit, Paloma Blanca refused to reasonably accommodate an employee’s disabilities. The company then allegedly terminated the employee because of his medical conditions and/or because he requested the reasonable accommodations he needed. Specifically, the employee had a heart attack and requested a reasonable accommodation, in the form of a request for leave under the Family Medical Leave Act (FMLA). Paloma Blanca approved 12 weeks of FMLA leave; however, after only five weeks of leave, Paloma Blanca notified Johnson that it had eliminated his position and was laying him off due to a "reduction in force." According to the EEOC, no other employees were subjected to a reduction in force at that time, and there were no department- or facility-wide reductions in force at that time. Read more here.
A federal judge in Casper, Wyoming, has approved a $1.2 million settlement in a case brought by the U.S. Equal Employment Opportunity Commission against Dart Energy Corp. and two related companies. The EEOC charged that the companies engaged in race and national origin harassment and retaliation against more than a dozen men who claimed they endured racially derogatory comments and jokes on a regular and repeated basis. According to the EEOC's lawsuit, the men were subjected to terms such as "wetback" and "beaner" in reference to Hispanic employees, "wagon burner" in reference to Native American employees, and the "N-word" in reference to black employees. The EEOC also alleged that several individuals complained to management, but their complaints were minimized or ignored entirely. Further, according to the EEOC, several men were demoted or fired after taking their complaints of discrimination to the Wyoming Department of Employment Labor Standards Division. Read more here.
The Federal Bureau of Investigation warned U.S. businesses that hackers have used malicious software to launch a destructive cyberattack in the United States, following a breach last week at Sony Pictures Entertainment. According to Cybersecurity experts, the malicious software described in the alert appeared to describe the one that affected Sony. The five-page, confidential "flash" FBI warning issued to businesses late on Monday, December 1, provided technical details about the malicious software used in the attack and gave advice on how to respond to the malware. The alert also requested that businesses contact the FBI if they identified similar malware. Read more here.
U.S. Supreme Court Considers Whether Threatening Facebook Posts Are Protected by the First Amendment
On Monday, December 1, 2104, the U.S. Supreme Court heard oral argument in Elonis v. United States. Elonis involves the question of when a threatening communication constitutes a crime, and it is of particular interest because the communications at issue were made online via Facebook posts. The case involves Anthony Elonis who made threatening Facebook posts about his former co-workers (he was terminated for complaints of alleged sexual harassment) and about his ex-wife, including posting about his ex-wife that “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” When Elonis’ ex-wife obtained a restraining order, he then posted “I’ve got enough explosives to take care of the state police and the sheriff's department.” He was eventually convicted of transmitting threats to harm another via interstate commerce, specifically the internet. Subsequently, Elonis filed suit alleging a violation of his First Amendment right to free speech. Elonis argued that he had a First Amendment right to make threatening Facebook posts unless the government could prove he had a “subjective” intent to threaten his wife; however, the court of appeals held the statute only requires proof that a “reasonable person” would find the statement threatening. To reach a decision, the Court must settle on a definition of proof, because current federal law seems to say, if applied literally, that any threat of harm against another individual is a crime. Read more here.
Senator Mark Leno, D-San Francisco, has introduced legislation to increase California’s minimum wage to $11 in 2016 and $13 in 2017. The bill also calls for increasing the minimum wage annually, indexed to inflation, beginning in 2019. Leno introduced a similar bill last year that died in an assembly committee. Voters recently approved a $15 minimum wage in San Francisco and a $12.25 minimum wage in Oakland. Currently, the minimum wage in California is $9 and will increase to $10 in 2016, unless this legislation passes. Read more here.
As employers attempt to minimize expenses under the Affordable Care Act (ACA), the Obama administration has warned them against paying high-cost workers to leave the company medical plan and obtain health coverage elsewhere, including under an ACA health insurance exchange. According to the Department of Labor (DOL), such action constitutes unlawful discrimination against employees based upon their health status. Offering, only to employees with a high claims risk, a choice between enrollment in the standard group health plan or cash, constitutes such discrimination. Brokers and consultants have apparently been offering to save large employers money by shifting workers with expensive medical conditions into insurance marketplace exchanges established by the ACA. The ACA requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness. Because most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. The trend concerns consumer advocates because it may erode employer-based coverage and drive up costs and premiums in the marketplace plans, which would absorb the expense of the sick employees. The burden would ultimately fall on consumers buying the plans and taxpayers subsidizing them. Read more here.
A Danish citizen, Hammad Akbar, has pled guilty to advertising and selling StealthGenie, a spyware application (app) that could remotely monitor calls, texts, videos and other communications on mobile phones without detection; he has been ordered to pay a fine of $500,000.00. This case is the first-ever criminal conviction concerning the advertisement and sale of a mobile device spyware app. “Spyware is an electronic eavesdropping tool that secretly and illegally invades individual privacy,” said Assistant Attorney General Caldwell. According to the U.S. Justice Department, “The defendant advertised and sold a spyware app that could be secretly installed on smart phones without the knowledge of the phones owner…This spyware app allowed individuals to intercept phone calls, electronic mail, text messages, voicemails and photographs of others. The product allowed for the wholesale invasion of privacy by other individuals, and this office in coordination with our law enforcement partners will prosecute not just users of apps like this, but the makers and marketers of such tools as well.” Read more here.
Under the federal Occupational Health and Safety (OSH) law, which is enforced by the Occupational Health and Safety Administration (OSHA) law, employers have a responsibility to provide a safe workplace for employees. OSHA has provided the following summary of 20 key employer responsibilities:
(1) Provide a workplace free from serious recognized hazards and comply with standards, rules and regulations issued under the OSH Act;
(2) Examine workplace conditions to make sure they conform to applicable OSHA standards;
(3) Make sure employees have and use safe tools and equipment and properly maintain this equipment;
(4) Use color codes, posters, labels or signs to warn employees of potential hazards;
(5) Establish or update operating procedures and communicate them so that employees follow safety and health requirements;
- CalPERS Retirees May Outnumber Active Workers in a Few Years
- HR Practice Note: Social Media Policies and the NLRB
- Non-Profit Agency Providing Services for Disabled Individuals Settles Disability Discrimination Lawsuit
- California’s Labor Commissioner Releases New Poster and Notice Related to Paid Sick Leave