The Department of Labor has released its proposal to raise the salary threshold for exempt employees to $50,440 ($970 a week). The current federal threshold is $23,660 a year ($455 a week). According to Labor Secretary Thomas Perez, the change could provide an additional $1.3 billion in wages for exempt workers every year. Read more here.
The U.S. Supreme Court has ruled that the U.S. Constitution provides same-sex couples the right to marry. The Court ruled 5-4 that the Constitution's guarantees of due process and equal protection under the law mean that states cannot ban same-sex marriages. With the ruling, gay marriage will become legal in all 50 states. Justice Anthony Kennedy, writing on behalf of the court, said that the hope of gay people intending to marry "is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." Read more here.
The U.S. Supreme Court has ruled, in King v. Burwell, that the Patient Protection and Affordable Care Act (PPACA) allows the federal government to provide nationwide tax subsidies to help individuals buy health insurance. The 6-to-3 ruling means it is likely that the PPACA will survive after Mr. Obama leaves office in 2017. For the second time in three years, the PPACA has survived a challenge to its enforceability before the U.S. Supreme Court. According to Chief Justice John G. Roberts, Jr., who wrote for a six-justice majority, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Read the decision here.
The California Supreme Court has issued a decision allowing thousands of San Francisco city employees and retirees to regain increases in future pensions that voters had sought to eliminate. A lower-court ruling had restored the increases for employees who retired after November 1996 and for future retirees, and the court on Wednesday denied the city’s appeal. The Court also denied an appeal by a lawyer for the workers, who had wanted a ruling that eliminated the cutbacks for earlier retirees. The lawyer said the ruling as it stands would help about 23,000 employees who have retired since 1996. The reductions were part of Proposition C, a November 2011 ballot measure sponsored by Mayor Ed Lee and backed by labor unions. Read more here.
San Francisco Superior Court Judge Harold Kahn has ruled that Ellen Pao, a woman who lost a high-profile gender discrimination lawsuit against a Silicon Valley venture capital firm, is liable for about a quarter of the roughly $1 million in legal costs the company is seeking. A jury in March found that Kleiner Perkins did not discriminate or retaliate against Pao. Kleiner Perkins is seeking more than $970,000 in legal costs from Pao, much of it for experts the company called to testify at trial. Pao's attorneys have called the amount excessive. Kahn said the company is entitled to $276,000 because the fees for experts that Kleiner Perkins is seeking should be scaled down to reflect Pao's more limited financial resources, specifically, the judge stated, "There is no doubt that KPCB has 'vastly' greater economic resources than Ms. Pao." Read more here.
Addressing retaliation is good for businesses and for workers a panel of experts told the Commissioners of the U.S. Equal Employment Opportunity Commission (EEOC) during a recent meeting.Claims of retaliation are the most frequent charges filed with the EEOC, accounting for almost 43 percent of all claims filed in 2014. Raymond L. Peeler, EEOC senior attorney advisor said, "retaliation is the linchpin for all civil rights enforcement. If employees fear the repercussions of filing a charge or complaint, then their rights are unlikely to be enforced." According to Commissioner Charlotte A. Burrows, "When retaliation makes employees too afraid to report discrimination, it creates a climate in which discrimination can thrive, affecting businesses' bottom lines and undermining the basic right to equal employment opportunity.” Read more here.
Federal Express has announced settlement of a class action lawsuit, Alexander v. FedEx Ground Package, in which its drivers alleged they were misclassified as independent contractors and were instead employees. According to executive vice president and general counsel Christine P. Richards, “FedEx Ground faced a unique challenge in defending this case given the decision of the Ninth Circuit Court of Appeals last summer. This settlement resolves claims dating back to 2000 that concern a model FedEx Ground no longer operates.” The Ninth Circuit had rejected FedEx’s argument that its drivers were independent contractors. California applies a “right to control” test to determine independent contractor versus employee status. Indicators of FedEx control over drivers included: setting regular schedules for the drivers; requiring drivers to wear FedEx uniform; and, requiring that vehicles were painted a certain color and marked with the FedEx logo. Read more here.
According to a California Labor Commissioner’s decision, Uber drivers are employees not independent contractors, as currently classified by Uber. The decision could increase costs for the smartphone-based ride service and impact the closely watched start-up's valuation. The Labor Commission's decision could significantly impact the growing industry of providing services via smartphones, with potential implications for other “crowdsourced” services such as Uber’s rival Lyft, chore service TaskRabbit, and cleaning service Homejoy.
Colorado's Supreme Court ruled that employers can fire workers who use marijuana for medical reasons, even though it's legal in that state.The case involved Brandon Coats, a quadriplegic who was fired by Dish Network (DISH) in 2010 after he failed a company drug. Coats had a doctor's authorization to smoke medical marijuana, which is legal in Colorado. Coats says that he never used the drug -- or was under its influence -- at work, which Dish Network did not dispute. However, the company has a zero-tolerance drug policy, and notes that medical marijuana is still illegal on the federal level. Therefore, Dish says the use of the drug for any reason is cause for termination. There is a Colorado law that protects employees from being discharged for "lawful activities," but the court ruled the law refers only to activities that are legal under both state and federal law. Read more here.
Four federal government agencies released a guide on the rights and processes available to applicants and employees who allege sexual orientation or gender identity discrimination. The guide is being reissued after more than a decade and has been substantially revised to reflect major developments in the law. The agencies collaborating on the guide are the U.S. Office of Personnel Management (OPM), the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Office of Special Counsel (OSC), and the U.S. Merit Systems Protection Board (MSPB). The guide is entitled, "Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities." It can be found here.
United Airlines Inc. has agreed to pay more than $1 million to settle a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's lawsuit charged that United's competitive transfer policy violated the Americans with Disabilities Act (ADA). The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. According to the EEOC, by requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, the company's practice frequently prevented employees with disabilities from continuing employment with United.The consent decree settling the suit requires United to pay $1,000,040 to a small class of former United employees with disabilities and to make changes nationally. United will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process. Read more here.
Reddit CEO and former venture capitalist Ellen Pao has filed a notice of appeal in her gender discrimination against venture capital firm Kleiner Perkins Caufield & Byers (KPCB), according to a filing submitted to the Superior Court of California on June 1. In March, a San Francisco jury ruled against Pao on all four of her claims against KPCB, where she worked from 2005 to 2012. Following a month long trial, the jury ruled that Pao’s gender was not a motivating factor for her termination from the firm or for her failure to be promoted to general partner, nor was her firing an act of retaliation against her. Pao was seeking at least $16 million in lost wages, and up to $144 million in punitive damages. Read more here.
The U.S. Supreme Court has declined review in a case challenging a decision by the California Supreme Court (Iskanian v. CLS Transportation), in which the Court held that representative Private Attorney General Act (PAGA) waivers are prohibited in employment arbitration agreements. In Iskanian, the California Supreme Court did uphold an employer’s ability to include class waivers in arbitration agreements, but not PAGA claims. Bridgestone framed the issue differently than Iskanian, arguing that representative PAGA claims are similar to class actions and, therefore, are preempted by the Federal Arbitration Act (FAA) pursuant to AT&T Mobility LLC v. Concepcion; that the FAA covers all statutory claims arising out of an employment relationship; and, that the FAA does not contain an exception for private plaintiffs’ claims just because they brought “on behalf of the state.” Another appeal of the Iskanian decision is currently pending before the 9th Circuit. Read more here.
The California Senate has approved a plan to again raise the state's minimum wage to $13 an hour in 2017, then tying it to the rate of inflation after that. Currently, the state’s minimum wage is $9 an hour and in 2016, will rise to $10 an hour. The proposal by Sen. Mark Leno, D-San Francisco, comes just two years after Gov. Jerry Brown signed legislation giving California one of the highest minimum wage rates in the nation. According to Leno, the current minimum wage, earned by 8 million workers, does not reflect the cost of living in California. Senators approved the bill on a 23-15 vote, sending it to the state Assembly. Republicans opposed the legislation. Read more here.
The California Court of Appeal, Third District, has held in Higgins-Williams v. Sutter Medical Foundation, that an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of job performance is not a disability pursuant to California’s Fair Employment and Housing Act (FEHA). The employee, Michaelin Higgins-Williams, worked for Sutter Medical Foundation as a clinical assistant. In June 2010, Ms. Higgins-Willimas reported to her treating physician, Alexander Chen, M.D., that she was stressed because of interactions at work with human resources and her manager. Dr. Chen diagnosed Ms. Higgins-Williams as having adjustment disorder with anxiety. Based on Dr. Chen‟s diagnosis, Sutter granted Higgins-Williams a stress-related (disability) leave of absence from work under the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act of 1993 (FMLA) from June 28, 2010, through August 2, 2010. Dr. Chen reported the employee’s disabling condition as “stress when dealing with her Human Resources and her manager.”
In a case of first impression dealing with the parameters of free speech on social media, the U.S. Supreme Court has ruled in favor of a Pennsylvania man, Anthony D. Elonis, who posted several violent messages on Facebook and was thereafter convicted under a federal threat statute. The Court held that it was not enough to convict the man merely because a reasonable person would regard his communications as a threat. Chief Justice Roberts noted that, "Our holding makes clear that negligence is not sufficient to support a conviction." The Court held that the legal standard used to convict him was too low, but did not clarify what the standard should be. Elonis had posted several violent messages on Facebook after his wife left him. In one post he wrote, "There’s one way to love you but a thousand ways to kill you." Elonis claimed he was an artist who turned to rap lyrics for therapeutic purposes to help him cope with depression. He was convicted for violating a federal threat statute, and appealed his conviction to the Supreme Court, arguing that the government should have been required to prove he actually intended to make a threat before sending him to jail for 44 months. Instead, the jury was instructed that the standard was whether a "reasonable person" would have understood the words to be a threat. Read more here.
The U.S. Supreme Court has ruled in favor of a Muslim woman, Samantha Elauf, who alleged that Abercrombie & Fitch Stores (Abercrombie) failed to hire her because she wore a hijab (headscarf) in observance of her religion. The Court ruled 8-1 that Abercrombie failed to accommodate Elauf's religious needs when she was not hired on the basis that her hijab violated company dress policy. Abercrombie argued that Elauf could not prevail without establishing that the employer had "actual knowledge" of her need for a religious accommodation. The Court disagreed and sent the case back to the lower court for further consideration, holding that, a job applicant need show only that his or her need for an accommodation was a motivating factor in the employer's decision, not that the employer had knowledge of the need.
The Oklahoma State Legislature last week passed and sent to the Governor SB 767, a bill otherwise known as the “comp cleanup bill”. Overall it is a rather unremarkable piece of legislation, correcting what some had felt were oversights from the states previous reform efforts. One of the more substantial “corrections” was the removal of sanitarium limitations on infectious diseases. Infectious disease is back to previous law, if contraction "arises out of employment."
There were, however, a couple changes that Opt Out supporters in Oklahoma will enjoy, even if they lend to lessened perceptions regarding the industry’s openness and overall fairness. One was the removal of the requirement that Opt Out companies maintain the same Statute of Limitations for claims reporting that companies under workers’ comp must honor. That move will (temporarily at least) solidify the extremely tight reporting windows that most Opt Out companies have adopted.
The U.S. Department of Labor (DOL) has updated its Family and Medical Leave Act (FMLA) forms. The forms now have a new expiration date of May 31, 2018. The form updates include information pertaining to the Genetic Information Nondiscrimination Act (GINA). California employers must modify the forms to the extent they permit disclosure of an employee’s medical diagnosis. The updated forms are available here.
International restaurant chain Ruby Tuesday, Inc., will pay $100,000 and implement preventative measures to settle a sex discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC). The federal agency charged that Ruby Tuesday denied two male employees the opportunity to work as servers in the busy resort town of Park City, Utah in the summer of 2013. According to the EEOC's suit, Ruby Tuesday posted an internal announcement within a nine-state region for temporary summer positions with company-provided housing and the chance for greater earnings. However, the announcement stated that only females would be considered, purportedly because of concerns about housing employees of both genders together. Ruby Tuesday only selected women for those summer jobs, therefore preventing two male employees from transferring to the resort. Subsequently the EEOC filed a lawsuit on behalf of the two employees, alleging sex discrimination. To resolve the matter, Ruby Tuesday will pay employees Andrew Herrera and Joshua Bell a total of $100,000 and take steps to prevent future sex discrimination. Read more here.
The City of Los Angeles’ new minimum wage legislation has added to the controversy over a longstanding pay disparity between cooks and servers. In response, a group of more than 250 Los Angeles restaurant owners has joined to fight the changes. The new law, passed by the City Council on May 19, gradually raises the city’s $9 per hour minimum wage to $15 by 2020. However, the new law does not allow employers to calculate tips as part of that income. Further, according to restaurant owners, a proposed amendment would further restrict their ability to even the pay between service staff and cooks. The controversy stems from the fact that California is one of only a handful of states that guarantees that employees who earn tips from customers are paid the same minimum hourly wage as everyone else. (The others are Alaska, Minnesota, Montana, Nevada, Oregon and Washington.) California state law requires that those tips be shared only among employees who actually interact with diners, not kitchen workers. This results in servers often earning far more than kitchen staff. Read more here.
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