San Diego Superior Court Judge Ronald S. Prager has certified a class action lawsuit, which includes almost 21,000 current and former hourly retail and corporate Apple employees. The lawsuit, which seeks a jury trial, covers the period from December 2007 to August 2012, exposing the tech company to potentially millions of dollars in damages. According to Judge Prager, a class action "is the only feasible method to fairly and efficiently adjudicate these claims." The plaintiffs allege that Apple's policy provided workers with a meal break after the first five hours of working, as opposed to the time period required by California law, which is that the meal period be provided by the fifth hour of work or the employee is owed an extra hour of pay. The plaintiffs also claim that Apple's scheduling policy made taking meal and rest periods "extremely difficult"; that employees were not compensated with the required extra hour of pay for missed meal periods and breaks; and that employees were given inaccurate itemized wage statements. Further, according to the lawsuit, employees who resigned or were terminated were not given final paychecks in a timely manner as required by law.
President Obama has signed an Executive Order, amending the 1965 Executive Order 11246, which prohibits federal contractors from engaging in discrimination based on sexual orientation and gender identity. The President's Executive Order also amends Executive Order 11478, which covers the federal civilian workforce, by adding "gender identity" as a new protected status.
President Barack Obama signed the Workforce Innovation and Opportunity Act (WIOA) into law on July 22, 2014. According to the Department of Labor (DOL) the WIOA is "by far the most significant reform of federal job training programs in more than 15 years and a critical step toward helping workers and employers succeed in the 21st century economy." WIOA is a job training program designed to help job seekers access employment, education, training, and support services to succeed in the labor market and to match employers with skilled workers. Congress passed the WIOA by a wide bipartisan majority; it is the first legislative reform in 15 years of the public workforce system. WIOA supersedes the Workforce Investment Act of 1998 and amends the Adult Education and Family Literacy Act, the Wagner-Peyser Act, and the Rehabilitation Act Amendments of 1998. In general, the Act takes effect on July 1, 2015, the first full program year after enactment. The DOL will issue further guidance on the timeframes for implementation of these changes and proposed regulations reflecting the changes in WIOA soon after enactment.
Goodwill Industries has agreed to pay $100,000 and provide other relief to settle a long-standing lawsuit for alleged retaliation filed by the U.S. Equal Employment Opportunity Commission (EEOC). In its lawsuit, the EEOC charged that Goodwill retaliated against a worker, Mary Goulet, at its Lawton, Oklahoma, store. Specifically, Goodwill allegedly terminated Ms. Goulet after she testified on behalf of another Goodwill employee in a prior federal sex and age discrimination lawsuit. The consent decree also provides for injunctive relief intended to prevent future discrimination, including notification to employees, revision and dissemination of anti-discrimination policies, and live training on anti-retaliation law, in addition to the $100,000 monetary award.
Governor Edmund G. Brown Jr. has signed legislation (SB 1446-DeSaulnier; D-Concord) that allows a small employer health care service plan contract or a small employer health insurance policy that was in effect on December 31, 2013, and that is still in effect, and that does not qualify as a grandfathered health plan under Affordable Care Act (ACA) to continue to be in effect until December 31, 2015. The bill thus provides California's small employers with additional time to prepare for full compliance with the ACA. Employers with less than 50 full-time employees are considered "small employers" under the ACA. Small employers should note that the ACA may count multiple part-time employees as a full-time employee. The ACA counts a combination of employees working 120 hours per month (around 30 hours per week) as one employee. If the total number of full-time equivalent employees exceeds 49, that employer would be required to provide insurance or pay a penalty for each employee. A business that employs variable-hour workers who may work 40 hours one week and not at all in other weeks, must add up the total hours those employees worked in a year. Divide that number by 2,080 (which represents 40 hours/week multiplied by 52 weeks in a year) for the number of FTEs.
B & D Contracting Inc., a labor recruiting and staffing agency that caters to oil field services and maritime fabrication facilities along the Gulf Coast, has agreed to pay $1,660,438 in back wages to 1,543 current and former employees. An investigation by the U.S. Department of Labor (DOL) found that the company allegedly engaged in improper pay and record-keeping practices that resulted in employees being denied overtime compensation in violation of the Fair Labor Standards Act (FLSA). The employees were assigned to client work sites throughout Louisiana, Mississippi and Alabama to work as welders, pipe fitters and shipfitters. Investigators from the Wage and Hour Division's New Orleans District Office found the company had allegedly mischaracterized certain wages as per diem payments and impermissibly excluded these wages when calculating overtime premiums, denying employees earned overtime compensation.
For the first time in more than 30 years, the Equal Employment Opportunity Commission (EEOC) has issued new pregnancy guidelines, which emphasize that failing to accommodate pregnant workers is a violation of federal law. The guidelines were issued on Monday, July 14, after a 3 to 2 vote along partisan lines on the commission. They are intended to clarify an array of federal laws, including the Pregnancy Discrimination Act of 1978 (PDA) which has been interpreted in different ways by employers and the courts. A fact sheet for small businesses and a question and answer document was also released.
A female Yahoo executive has been sued for sexual harassment and wrongful termination by another female employee. The lawsuit involves Nan Shi, a principal software engineer, who has accused her direct supervisor, Maria Zhang, a senior engineering director for Yahoo Mobile, of allegedly pressuring Shi on multiple instances into having oral and cyber-sex in exchange for a "bright future" at Yahoo. Shi's lawsuit, filed on July 8 in a California court, accuses Zhang of unfairly downgrading her performance reviews in 2013. The complaint also alleges that Yahoo's human resources department did not conduct an investigation into the alleged harassment and instead placed Shi on unpaid leave and eventually terminated her. Yahoo is also a named defendant. Yahoo denies the allegations.
Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, considered Avila insubordinate for not claiming overtime and fired him. The termination occurred after Avila had testified in a Fair Labor Standards Act (FLSA) lawsuit brought by fellow officer, Edward Maciel, who claimed overtime pay for working through lunch. Avila then filed a lawsuit claiming he was fired in retaliation for testifying, in violation of the FLSA. The evidence presented at trial was that only the officers who testified against the LAPD in the Maciel suit, were disciplined for not claiming overtime, even though the practice was widespread in the LAPD. A jury returned a verdict in favor of Avila on his FLSA anti-retaliation claim. On appeal, the Ninth Circuit affirmed, holding that "The uncontested evidence in this case is that Avila would not have been fired had he not testified. Indeed, an LAPD official confirmed at trial that the only officers disciplined for the overtime violations were those who testified in the Maciel action, and that Avila would never have been disciplined had he not testified."
Refusal to Sign Disciplinary Notice Does Not Constitute Misconduct Barring UI Benefits in California
The California Supreme Court has held that an employee's refusal to sign a disciplinary notice does not constitute misconduct for purposes of obtaining unemployment insurance benefits. The case involved Craig Medeiros (Claimant) who worked for Paratransit, Inc. (Employer) as a driver. Upon hire, Claimant was required to join a union and sign a collective bargaining agreement (CBA) which specified that "all disciplinary notices must be signed by a Vehicle Operator when presented to him or her." Subsequently, a passenger filed a complaint alleging that Claimant had harassed her. Employer investigated and concluded the alleged misconduct had occurred. The Employer then met with Claimant and asked him to sign a disciplinary notice; however, he refused to sign. Claimant filed for unemployment insurance benefits but his claim was denied by the Employment Development Department (EDD) On appeal, the California Supreme Court held that his "refusal to sign the disciplinary notice was not misconduct but was, at most, a good faith error in judgment that does not disqualify him from unemployment benefits." The Court also noted that "there is no dispute over whether the employer was within its rights to fire the employee for his insubordination. The only question is whether that single act of disobedience constituted misconduct" for purposes of UI.
The Equal Employment Opportunity Commission (EEOC) has filed an age discrimination lawsuit against the Court of Common Pleas of Allegheny County, Fifth Judicial District of Pennsylvania. According to the EEOC, Carolyn J. Pittman, at age 70, was assigned to work at the Allegheny County Common Pleas Court by a staffing agency in February 2012. While Pittman was still in training with Lisa Moore, who was in charge of training and supervising her, Moore allegedly complained that Pittman was too old to work in the department, and Pittman was subsequently terminated. The Age Discrimination in Employment Act (ADEA) prohibits discrimination against job applicants and employees who are age 40 or older.
On July 9, the U.S. House overwhelming approved the Workforce Innovation and Opportunity Act (H.R. 803) by a vote of 415-6 (with 11 not voting.) WIOA is a bipartisan federal job training bill intended to address unemployment. The bill is now headed to the President for signature. One of the bill's sponsors Patty Murray (D-WA) commented that,"Now more than ever, effective education and workforce development opportunities are critical to a stronger middle class. We need a system that prepares workers for the 21st century workforce, while helping businesses find the skilled employees they need to compete and create jobs in America." According to Murray, WIOA streamlines workforce development by eliminating 15 existing workforce programs; applying a single set of outcome metrics to every federal workforce program under the Act; creating smaller, nimbler, and more strategic state and local workforce development boards; integrating intake, case management and reporting systems while strengthening evaluations; eliminating the "sequence of services" and allowing local areas to better meet the unique needs of individuals.
A group of Seattle businesses ("Forward Seattle") has cleared one hurdle in the effort to repeal the city's recently enacted $15 minimum wage. The group has gathered 19,500 signatures, which is sufficient to put the issue on the November ballot, provided the signatures hold up as there are allegations of fraud. The group needed 16,510 signatures. Opponents to the group's efforts have initiated an online campaign including online boycott lists and negative comment posts to sites like Facebook and Yelp.
The U.S. Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Wal-Mart Stores, Inc., alleging that the retailer fired an intellectually disabled employee at a Rockford Walmart store after it rescinded his workplace accommodation. According to the EEOC, Wal-Mart rescinded a long-standing practice of giving written job assignments to the employee, William Clark. That accommodation had enabled Clark to successfully perform his job during an 18 year career at Wal-Mart and to meet the company's performance expectations. The EEOC has also charged that shortly after rescinding the accommodation, Wal-Mart began disciplining Mr. Clark for supposed performance issues, and that ultimately lead to his termination.
Walgreens has agreed to pay $180,000 to a longtime employee with diabetes and to implement revised policies and training to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC's lawsuit charged that former cashier Josefina Hernandez, who has Type II Diabetes, was terminated by a South San Francisco Walgreens because of her disability after she ate a $1.39 bag of chips, without paying for it at that time (the Hernandez claimed she intended to pay later). Hernandez claimed that she ate the chips during a hypoglycemic attack in order to stabilize her blood sugar level. Hernandez had worked for Walgreen for almost 18 years with no disciplinary problems, and Walgreens knew of her diabetes. Yet the company security officer testified that he did not seek clarification when Hernandez wrote, "My sugar low. Not have time," in reply to his request for an explanation of why she took the chips before paying. According to EEOC San Francisco Regional Attorney William R. Tamayo, "Not only was this harsh and unfair, but it was illegal, and that's why the EEOC sued to correct this wrong."
The U.S. Supreme Court has granted a petition for review in Mach Mining v. EEOC, a case in which the 7th Circuit held that employers cannot challenge the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC) conciliation efforts (informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws). According to the 7th Circuit, Title VII of the Civil Rights Act of 1964 conveys complete discretion to the EEOC to engage in conciliation efforts. Therefore, according to the 7th Circuit, employers cannot seek to dismiss EEOC lawsuits by arguing that the EEOC did not adequately engage in conciliation efforts before filing its lawsuit. Mach Mining raised failure to adequately engage in the conciliatory process as an affirmative defense to gender discrimination charges filed by the EEOC.
The U.S. Supreme Court has ruled that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violates a federal law protecting religious freedom. In a 5-to-4 decision, which applied to two companies owned by Christian families, the Court opened the door to challenges from employers claiming many other laws violate their religious freedom. Justice Samuel A. Alito Jr., in writing for the court's five more conservative justices, held that requiring employers to provide contraception coverage imposed a substantial burden on religious liberty. He said the government could provide the coverage for individuals in other ways. Justice Ruth Bader Ginsburg, writing a dissent for the court's four-member liberal wing, argued that the contraception coverage requirement was vital to women's health and reproductive freedom.
In the digital era, where cell phone use is ubiquitous, and personal content on cell phones vast, it was inevitable that the question of whether police can conduct a warrantless search of a cell phone would come before the U.S. Supreme Court. In Riley v. California, a unanimous Court has ruled that, in general, a search warrant is required before police can search a suspect's cell phone. The case involved David Leon Riley, who was stopped by police for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley seized a cell phone from his pants pocket. The officer viewed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station, a detective specializing in gangs also looked at the phone's digital contents. Based in part on photographs and videos that the detective found, the State of California charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley's gang membership. Riley moved to suppress all evidence that the police had obtained from the search of his cell phone. The trial court denied the motion, Riley was convicted and appealed. The California Court of Appeal affirmed and Riley appealed to the U.S. Supreme Court.
California Supreme Court Holds No Federal Preemption of California Law Providing Protections to Undocumented Workers
The California Supreme Court has just issued the highly anticipated decision in Salas v. Sierra Chemical, addressing the question of whether "federal immigration regulation now become so pervasive as to leave no room for state employment laws that extend antidiscrimination protections with lost pay remedies to employees who are unauthorized aliens? Specifically, the Court considered whether federal immigration law preempts California's Senate Bill No. 1818, which extends state law employee protections to all workers regardless of immigration status. The Court concluded that: (1) Senate Bill No. 1818 is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer's discovery of an employee's ineligibility to work in the United States; and (2) contrary to the Court of Appeal's holdings, the doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker's claims under California's FEHA, although they do affect the availability of remedies. Accordingly, the Court reversed and remanded the matter for further proceedings.
Ninth Circuit Rules Nordstrom Has the Right to Enforce Arbitration Agreement Contained in Employee Handbook
In Davis v. Nordstrom, Inc., the Ninth Circuit reversed a district court's order denying Nordstrom, Inc.'s motion to compel arbitration of an employee's claims brought as a putative class action alleging nonpayment of wages and failure to provide meal and rest periods. Prior to this, following the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), Nordstrom had made revisions to the employee arbitration agreement, contained in its employee handbook, which precluded employees from bringing most class action lawsuits. The court held that Nordstrom and the employee entered into a valid arbitration agreement to arbitrate disputes on an individual basis. The court found that Nordstrom satisfied the minimal requirements under California law for providing employees with reasonable notice of a change to its employee handbook by sending a letter to the employees informing them of the modification, and not seeking to enforce the arbitration provision during the 30 day notice period. The court also held that Nordstrom was not bound to inform the employee that her continued employment after receiving the letter constituted acceptance on new terms of employment.
The Ninth Circuit has affirmed a district court's order granting Bloomingdale's, Inc. motion to compel arbitration under the Federal Arbitration Act, and dismissing a putative class action brought by a former employee to recover unpaid overtime wages. Bloomingdale's arbitration agreement provided that employees who failed to opt out of the arbitration agreement waived their right to pursue employment-related claims on a collective basis in any forum. The Ninth Circuit affirmed the district court's decision that the arbitration agreement was valid, that the employee had the right to opt out of the arbitration agreement, and that had she done so she would be free to pursue a class action. The court further held that having freely elected to arbitrate employment- related disputes on an individual basis, the employee could not claim that enforcement of the arbitration agreement violated either the Norris-LaGuardia Act or the National Labor Relations Act.