Labor and Employment

Since the passage of the California Fair Pay act in late 2015 (effective January 1, 2016) and its recent amendments, many employers and commentators have criticized the statute for imposing a vague and dangerous standard on California employers.

The California Fair Pay Act replaces the former “equal work” standard of the Equal Pay Act with a “substantially similar” standard.   The California Fair Pay Act (Labor Code section 1197.5) states:   “(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions …”.

Some adrenalized commentators have said that any effort to actually conduct this analysis is a fool’s errand. The standard is so vague and shapeless that it is functionally meaningless until a court sharpens the standard with defined tests and definitive holdings. Other commentators suggest that employers abandon any attempt to determine if any two types of work are substantially similar to one another (an analysis required by the statute) and instead focus on the second half of the statutory analysis, which allows employers to justify wage disparities (along race or gender lines) on the basis of a bona fide factors other than sex or race.

While it is true that courts have not yet ordained a specific analysis on how to determine substantially similar work, the statutory standard is not so vague as to defy either analysis or application.  Legislative examples propose that under this standard a male school janitor and a female hotel housekeeper may be engaged in substantial similar work.

Even if the standard were so vague as to defy application (and I don’t believe it is) employers are well served to act reasonably and based upon a good faith and reasonable interpretation of the law. Yes, a court may later hold that some part of any analysis used is incorrect, but the use of a reasonable analytic process (before any court decision considering the law) will likely place an employer in a better position than a company that has skipped the first step of the required analysis.

To read this full article and a general approach to conducting the “substantially similar” work analysis, click here.

In Green v. Dallas County School District, a Texas jury found that a Dallas County School District (the “School District”) violated Texas disability discrimination laws when it fired a bus monitor who lost control of his bladder on a school bus.  The bus monitor, Paul Green, suffered a known disability – congestive heart failure – and had disclosed that he was taking a diuretic drug for his heart condition. The District said it did not fire the bus monitor “because of” his disability (congestive heart failure) but because of the health and safety violations that occurred. On appeal, the Court of Appeal agreed and reversed the jury verdict.  Green asked the Texas Supreme Court to consider whether the jury could have found he was fired because of a different “disability” – his urinary incontinence.

To read the rest of this article, visit HRUSA at http://blog.hrusa.com/blog/texas-bus-monitor-termination-for-incontinence-is-discrimination/

On April 13, 2017, Governor John Hickenlooper approved Colorado House Bill 17-1021 (“HB 17-1021”) which amends Section 8-1-115 of the Colorado Revised Statutes.  In summary, HB 17-1021 provides that the information an employer provides to the Colorado Department of Labor and Employment (“CDLE”) in connection with complaints and investigations into violations of the State’s wage and hour laws can be treated as a public record and released to the public pursuant to the Colorado Open Records Act, unless the CDLE determines that the information is a trade secret.

To read the rest of the article, visit the HRUSA blog at: http://blog.hrusa.com/blog/colorado-payroll-information-may-become-public-record/.

By Jessica A. Schoendienst

Compensatory time off or “comp time” is paid time off that is provided to employees instead of overtime pay.  Comp time has been used by public employers for decades.  There have been several attempts in the past to legalize comp time for private sector employers.  So far, no changes to the law have been passed.

On May 2, 2017, H.R. 1180, the Working Families Flexibility Act of 2017, passed the U.S. House of Representatives 229-197.  All Democrats and six Republicans voted against the bill.  H.R. 1180 must also pass the U.S. Senate in order to be presented to the President.  The White House Administration has already indicated that if H.R. 1180 were presented to the President in its current form, his advisors would recommend that he sign the bill into law.  However, given that at least some Democrats must vote in favor of the bill in the Senate it is unlikely that the President will ever be given this chance.

Read about the amendments to the Fair Labor Standards Act (FLSA) at http://blog.hrusa.com/blog/private-sector-comp-time-dont-count/.

By: Michelle L. Covington

A recent National Labor Relations Board (NLRB) decision affirmed the Board’s position on employer email policies under the National Labor Relations Act (NLRA).   In Purple Communications, Inc. and Communications Workers of America, AFL-CIO the Board held that employees who may use their employer’s email system for work-related communications have the right to send off-the-clock email communications through their work email system that are protected under the NLRA.  The Act applies to most employees in the private sector, regardless of whether they are unionized, and gives employees the right to participate in activities or communications that are for their mutual aid or protection regarding the terms and conditions of employment.  This could include complaints about management, wages, shift schedules, or safety concerns.

To read the full article, visit the HRUSA page at: http://blog.hrusa.com/blog/recent-nlrb-decisions-on-email-and-protected-activities/.

By Jessica Schoendienst

The California Department of Industrial Relations (DIR) updated all but Wage Order 14 and 17 recently.  The DIR regulates wages and hours for employees.  The Division of Labor Standards Enforcement (DLSE) enforces the provisions of the wage orders, including the posting requirements.  The Wage Orders are numbered 1 through 17.

The most recent updates were made to reflect the increases in California’s minimum wage.  (To read more on the minimum wage increase, visit my prior L&E Blog here.)  The update shows the minimum wage for 2017 and 2018 as follows:

Effective Date          26 or More Employees         25 or Fewer Employees

January 1, 2017                        $10.50                                               $10.00

January 1, 2018                        $11.00                                               $10.50

Employers are required to post a copy of the applicable Wage Order in an area frequented by employees, such as a breakroom or your employee entrance.  The Wage Orders must be printed on 8.5″ x 11″ paper.  If you are unable to post the Wage Order because of the work location or other conditions, you should inform employees that they may request a copy of the Wage Order from you.  While the Wage Order does not specify what penalties can be imposed for failure to comply with the posting requirements, it is likely Private Attorney General Act (PAGA) penalties could be recovered by employees and/or the DLSE for noncompliance.  PAGA’s default penalty provision under Labor Code section 2699(f) permits the recovery of a penalty of $100 per employee for initial violations, and subsequent penalties in the amount of $200 per employee per pay period. The updated version of the Wage Orders contains a revision date of “12/2016.”  Employers can find this date on the cover page for each Wage Order.

Given that there are 17 different Wage Orders it may be unclear as to which Wage Order each employer must post.  The DLSE has published a pamphlet to help guide employers in determining which Wage Order must be posted.  This pamphlet can be found here.

Electronic versions of the Wage Orders for posting can be obtained from the DIR Industrial Welfare Commission Wage Order webpage here.  Printed versions of the Wage Orders can be obtained by contacting a local DLSE district office.  A listing of these offices can be found here.

If you have questions about these revisions or which Wage Order applies to you, the attorneys in Weintraub Tobin’s Employment Law Group can assist you.  Contact any one of us if we can be of assistance.

Imagine this: Your business lies within a zone that is subject to a mandatory evacuation order from emergency response and law enforcement officials.  Imagine that the evacuation order arises from a fire or imminent flooding.  What do you do?  Shut your business and get out of course.  Most evacuation orders are short lived and the hazardous conditions are realized or not within a short period of time.  But what happens when the evacuation order persists for a number of days or even weeks?  Your plant operations or business remains shut down.  You may have compelling business interests that demand attention during an extended evacuation order.  You may need to respond to security alarms and alerts, or ensure that the premises are adequately secured.  There may be a fear of product spoliation or destruction, and you may face a serious temptation to send a minimal or skeleton crew into the area covered by the evacuation order in order to ensure that those business concerns are addressed.

Lawyers are trained to look at scenarios like this in reverse.  The employer sends a skeleton crew in to secure the premises or ensure that essential processes are completed or that products do not spoil. Something bad then happens.  The wildfire burns down the surrounding area or the flood arrives and employees are injured.  Now what?

To read the full article, visit the HRUSA blog at http://blog.hrusa.com/blog/managing-your-business-under-mandatory-evacuation/

Introduction

For the first time, a federal appellate court has determined that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Under Title VII, an employer may not take an adverse employment action against an employee on the basis of a protected characteristic, such as race, color, religion, national origin, or sex. On April 4, 2017, the full panel of the U.S. Court of Appeals for the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana that sexual orientation is a protected class that may be used as a basis to bring a discrimination or retaliation suit under Title VII.

Read the case discussion on the HRUSA blog here: http://blog.hrusa.com/blog/federal-court-prohibits-sexual-orientation-discrimination/.

Intentional torts committed by employees are difficult for employers to both anticipate and protect against. When an employee commits a criminal act against another employee or a third party, the law generally considers whether the employer knew or should have known that the employee posed a danger in deciding whether a duty to protect against the harm was owed. However, an employee’s dangerous propensity is often difficult to predict.  Employees rarely make overt criminal threats or give unambiguous indications that they intend to cause harm. Further, employers are judged in retrospect, and with the benefit of hindsight, in deciding whether seemingly innocuous comments or acts should have been taken as warning signs that the employee posed a danger.

CASE DISCUSSION

On March 24, 2017, in Anicich v. Home Depot U.S.A., the Seventh Circuit extended the duty of Illinois employers to protect against criminal acts by an employee occurring away from the workplace, when a supervisor uses his or her “supervisory authority” to compel an employee to attend a private event under the threat of termination or job reduction.  The case arose out of a supervisor’s rape and murder of a subordinate employee during a trip to attend a family wedding in a different state, when the supervisor had previously threatened to either fire or reduce the employee’s hours if she did not attend.

To read the rest of the article, visit the HRUSA Law Blog at: http://blog.hrusa.com/blog/employers-may-be-liable-for-violence-away-from-work/.

As the national controversy continues to swirl around immigration issues, a federal appellate court this week faulted an employer for demanding that an employee provide information to prove “‘legal right to work in the United States … as required by the Immigration Control and Reform Act of 1986.’”  The U.S. Circuit Court of Appeals for the Ninth Circuit (“Ninth Circuit”) ruled in Santillan v. USA Waste of California, Inc., Case No. No. 15-55238, that Gilberto Santillan — a 53-year-old, Spanish-speaking garbage truck driver — did not have to “provide proof of employment eligibility.”

The appellate court said that was so because Santillan, who had worked for the employer for 32 years, had been fired and then reinstated shortly before his employer required him to provide such proof.  It may come as a surprise to employers to learn that an employee who is fired and then reinstated may not have to prove his or her eligibility to work in the U.S. upon reinstatement, but that is the case under federal law.