We all know this creepy guy. In some offices, he bear hugs female co-workers. In others, he serves as the office masseuse, casually massaging the shoulders of any seated woman he passes in a conference room. Continue reading
After a short lull in immigration policy action, things are changing again. Last week the Trump Administration informed the 9th Circuit Court of Appeals that it would issue a new Executive Order (EO) on the travel/visa ban this week which will replace the initial EO and moot the 9th Circuit’s national temporary restraining order. The new EO is expected late this week and has not been released in draft form. The Trump Administration has offered some information about the new EO as follows: it will not take effect immediately upon issuance, to allow for preparations and avoid the chaos that ensued when the initial EO took effect immediately; it will apply to the same seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen); it will clarify how it applies to dual citizens of a listed country and another country that isn’t on the list; it will be clear that lawful permanent residents of the US are not affected by the EO; it may allow some refugees from Syria. These points address the most obvious legal and operational deficiencies of the initial EO. Continue reading
The facts are distressing: according to federal Occupational Safety and Health Administration statistics, over half of all reported workplace violence incidents occurred against workers in healthcare and social assistance. Nurses are attacked at more than 3 ½ times the average national rate of occupational violence. Continue reading
President Trump’s recent Executive Order 13769 (EO) on immigration caused tumult for many colleges and universities when it was implemented. With more than 20 lawsuits challenging the EO, on Feb. 9 the 9th Circuit Court of Appeals upheld a national temporary restraining order (TRO) granted by U.S. District Court in Washington state. While this is a major victory for the rule of law and constitutional separation of powers, it’s only temporary. Additional court rulings and executive orders on immigration are expected, and the approach is difficult to predict.
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Andrew Puzder, the fast food CEO that Donald J. Trump nominated to be Labor Secretary, abruptly withdrew his name from consideration today following revelations that he was physically abusive to his wife and that he employed an undocumented worker at his home. Puzder had reportedly lost the support of several Republican senators, guaranteeing that his nomination would fail. Continue reading
As we previously blogged here, in April 2016, in Kilby v. CVS Pharmacy, Inc., the California Supreme Court ruled, without providing much guidance, that suitable seating is required “when the nature of the work reasonable permits the use of seats.” Last fall, Bank of America (BofA), in a similar representative action, agreed to settle a suitable seating lawsuit for $15 million, filed on behalf of all of its California non-exempt tellers. The settlement provides some interesting insights about settlements of class and representative actions, and provides some guidance on the suitable seating requirement under California law.
The Players: The settlement involved two cases that were filed between 2011 and 2013. In April 2011, two plaintiffs, Rhonique Green and Olivia Giddings, filed a putative class action complaint in Los Angeles County Superior Court (the Green action), seeking damages and civil penalties under the California Private Attorneys’ General Act (“PAGA”) on behalf of themselves and all current and former BofA California tellers. The plaintiffs alleged BofA required them to stand while working, in violation of California’s Wage Order, even though there was “ample space behind each counter to allow for the use of a stool or seat by Bank of America’s tellers during the performance of their work duties.” BofA removed the Green case to federal court. In October 2013, Nicole Garrett filed another complaint (the Garrett action) against BofA in Alameda County Superior Court, seeking civil penalties through a PAGA “representative action.” The Green action was stayed pending resolution of the Garrett action.
Who Got Paid: Upon settlement of the Garrett Action, after $5 million (1/3 of the settlement) plus litigation costs went to plaintiffs’ counsel, 75% of the settlement was distributed to the State of California (the Labor Workforce Development Agency, or “LWDA”), leaving 25% to the allegedly aggrieved employees. The three named plaintiffs each received a $25,000 enhancement before the remaining 25% was divided among the representative group of employees.
Interesting Features of the Settlement: In addition to the $15 million settlement, BofA agreed to non-monetary terms that should help prevent future suitable seating litigation against it. Specifically, BofA agreed to provide suitable seating for its tellers at all California BofA branches. BofA agreed to inform tellers (via managers and meetings with tellers) that they have the right to use seats while working when the nature of their work reasonably permits sitting. Under the settlement agreement, the term “reasonably permits sitting” requires BofA to provide seats to tellers when they are working on the teller line and/or at a teller window, including when they are assisting customers. However, the “suitable seating” provision does not apply when it is not possible for the teller to remain seated while performing his or her job, such as when the teller is printing. Also under the agreement, BofA now instructs tellers to advise management if a seat is not available so management can promptly provide a suitable seat. Last, BofA agreed to post documentation regarding its suitable seating policy for employees to access along with other policies and procedures.
The Bottom Line: The terms of this settlement don’t necessarily have a ripple effect beyond BofA and the putative class, and the agreement does not do much to illuminate the “suitable seating” requirement. The law is still fairly undefined as to when the workplace “reasonably permits the use of seats.” Because of that uncertainty, and the substantial potential damages and penalties that may be sought in a PAGA or class-wide suitable seating action, employers should evaluate whether their workplace reasonably permits the use of seats, using the Court’s reasoning in Kilby v. CVS Pharmacy, Inc. as a guide. If such provision of seating is warranted, then the next step is to prepare a written suitable seating policy; to disseminate and inform employees of this policy and the availability of suitable seating, and to provide suitable seating pursuant to that policy. Further, because the law is murky as to when work “reasonably permits” seating, employers should conduct such an analysis with the aid of counsel.
During the first few weeks (or even months) in office, President Trump will have a lot of key issues (e.g., healthcare and immigration) on his agenda. What we do not know is whether President Trump and his administration will focus on transgender or sexual orientation rights. In fact, we have no clear indication on what President Trump’s position is on transgender rights (though he went on record during a town-hall-style campaign event to state that transgender people should be allowed to use the bathroom they feel is appropriate). What we do know is that President Trump will have the opportunity to appoint the new chair at the Equal Employment Opportunity Commission in July 2017 when the term of its current chair, Jenny Chang, expires, if not sooner. The new chair, with likely budget cuts from Congress, could lead the EEOC to an about-face from the current EEOC direction of applying Title VII to workplace discrimination claims based on gender identity and sexual orientation.
In the last several years, following the momentum built by federal courts upholding transgender rights under Title VII (e,g., Smith v. City of Salem (6th Cir. 2004), Schroer v. Billington (D.C. Cir. 2008), and Glenn v. Brumby (11th Cir. 2011)), the EEOC has interpreted the prohibition against sex discrimination under Title VII of the Civil Rights Act of 1964 as providing protection to lesbian, gay, bisexual, and transgender people, even though there is no explicit language extending the protections to gay and transgender rights. (See Macy v. Dept. of Justice (EEOC 2012), Lusardi v. Dep’t of Army (EEOC 2015)). Applying that interpretation, the EEOC has filed lawsuits against a number of employers for sexual orientation or gender identity discrimination. In October 2016, the EEOC published its Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021. (https://www.eeoc.gov/eeoc/plan/sep-2017.cfm). In the SEP, the EEOC outlined its enforcement and guidance strategies for various employment issues and outlined that it continues to prioritize, among other issues, “protecting lesbians, gay men, bisexuals and transgender (LGBT).” The EEOC under the Trump Administration is likely to alter its course in vigorously enforcing such issues, choosing instead a narrower view of “sex” discrimination under Title VII since the United States Supreme Court has yet to weigh in on whether such individuals are protected under Title VII.
Interestingly, however, any changes that may be made in the direction of the EEOC may not slow the push to interpret “sex” discrimination to include sexual orientation and gender identity. If the Seventh Circuit in Hively v. Ivy Tech Community College and Second Circuit in Christiansen v. DDB Worldwide join the Sixth, District of Columbia and Eleventh Circuits in determining that Title VII protects employees from discrimination based on sexual orientation, this would signal that the U.S. Circuit Courts are the new vanguard of an expansive interpretation of Title VII’s protections, potentially supplanting the active role that the EEOC has played throughout the Obama Administration. Of course, the issue of the scope of Title VII may thereafter wind its way to the U.S. Supreme Court, and how the high court would rule, particularly when the current judicial vacancy is filled, is very much an open question.
The Trump Administration’s strategies and appointments will undoubtedly impact transgender and sexual orientation discrimination protections under Title VII, but the administration’s ultimate strategic direction as to Title VII, as well as a broad range of policy positions, is largely unknown at present. For now, we watch and wait.
As readers of this blog will note, we have previously noted a split among the U.S. Circuit Courts on the issue of whether class action waivers in arbitration agreements are legal or not: the Second, Fifth (see here) and Eighth Circuits have held that such waivers are legal (relying upon the Supreme Court’s holding in AT&T Mobility LLC v. Concepcion, among others), while others (including, most recently, the Ninth Circuit in Morris v. Ernst & Young, LLP), accepting the arguments of, notably, the National Labor Relations Board, have held that such waivers are not legal. (In an opinion that is logically consistent with those of the other circuits that have held such waivers illegal, the Ninth Circuit in Morris held that Section 7 of the National Labor Relations Act (“NLRA”) and its promise of protected “collective action” renders class action waivers in arbitration unlawful—despite the lack of required “clear congressional intent” for the NLRA to trump the Federal Arbitration Act, as the Supreme Court discussed in AT&T Mobility and also in American Express Company v.Italian Colors Restaurant.)
Today, the Supreme Court granted a petition to consider, in a consolidated appeal, which Circuit’s position will prevail.
For employers, this decision to grant review, though not surprising, is absolutely critical. If the Supreme Court agrees with the NLRB and invalidates such waivers, this would open up a window for class action litigation or class arbitration that had seemingly closed with AT&T Mobility. This would clearly be a discouraging turn of events for employers. Yet the current state of affairs is nearly as bad because of the degree of uncertainty regarding class action waivers: are they enforceable or unenforceable? To say this lack of certainty makes managing employees and employment litigation difficult would be an understatement.
What comes next? As Yogi Berra once said, “It’s tough to make predictions, especially about the future.” This past election cycle has proven Mr. Berra correct. What we can say is that the current vacancy on the Supreme Court (and when it is filled, and who fills it) looms large for this decision. Stay tuned.
On December 22, 2016, the California Supreme Court issued a decision, Augustus v. ABM Security Services, Inc., concluding that state law prohibits on-duty and on-call rest periods. This decision reverses a January 2015 decision in which the Court of Appeal ruled that such rest periods were lawful, even though employees might have to respond to an emergency call during a rest period.
The Supreme Court held that “during rest periods, employers must relieve employees of all duties and relinquish control over how the employees spend their time,” relying upon their 2012 decision in Brinker Restaurant Corporation v. Superior Court. In other words, employees cannot be restricted in how they use their time, where they spend their time, and cannot be subjected to any other employer restrictions during their 10 minute legally mandated rest breaks. The Supreme Court made clear that its holding applied both to on-duty rest periods (where an employee is actually working) as well as on-call rest periods (where an employee is not working, but is prepared to and will return to work during the rest period upon request from the employer).
Acknowledging there are times an employer may “find it especially burdensome to relieve their employees of all duties during rest periods- including the duty to remain on call,” the Court provided that Employers “may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in [the Wage Order].”
This decision creates genuine problems for employers who have a legitimate business need for on-duty or on-call employees. For example, there are certain employees who may lawfully be able to agree to have on-duty meals due to the nature of the job (see e.g. Wage Order 4-2001 11(A)). Because there is no similar provision for rest breaks, however, based on this decision, employers who need employees to remain on duty during rest breaks should review the impact of this case and the potential need to pay a premium if a lawful off-duty rest break is not authorized or permitted.
Recommendations for Employers:
- Advise managers against calling employees while they are on break.
- Do not require that employees carry a cell phone other mandated communication devices (such as a “walkie talkie”) during breaks.
- Do not restrict employees from leaving the premises during a break.
- Consider implementing a policy advising employees to inform management if a rest break is interrupted, or if they feel they are unable to take a rest break so that management can provide either an uninterrupted rest break or a rest break premium.
As we first discussed here, “ban the box” state laws and local ordinances are picking up traction nationwide. Both California and Los Angeles (in 2013 and 2014 respectively) passed legislation regulating public entities’ ability to inquire about a job applicant’s prior criminal history. Beginning January 1, 2017, Los Angeles will join the growing number of jurisdictions also regulating a private employer’s ability to make such an inquiry.
Who Is Covered?
The ordinance covers private employers that are located or do business in the City of Los Angeles and who employ 10 or more employees. For the purposes of this ordinance, an employee is any person who performs at least two hours of work on average each week in the City of Los Angeles and who qualifies as an employee entitled to minimum wage under California’s minimum wage law.
Notably, the ordinance defines “employment” to include, but not to be limited to, temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency, as well participation in a vocational or educational training program with or without pay.
The ordinance specifically exempts (1) employers who are required by law to obtain conviction information; (2) positions where the applicant would be required to use a firearm in the course of employment; (3) positions where a prior conviction would legally bar employment; and (4) employers who are prohibited by law from hiring an applicant convicted of a crime.
Prohibited inquiries: Employers subject to the ordinance may notinclude on any job application any questions seeking the disclosure of an applicant’s criminal history. An employer may also not at any time or by any means inquire or require the disclosure of an applicant’s criminal history unless and until a conditional offer of employment is made.
What if I make a conditional job offer and discover an applicant’s criminal history? – Acting upon the information: If an applicant’s criminal history is revealed after the employer makes a conditional offer of an employment, the employer may not take any adverse action against the applicant unless the employer first performs a written assessment linking the applicant’s criminal history with risks inherent in the duties of the job sought.
- At a minimum, the written assessment must consider 8 factors identified by the EEOC (https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm) and any other factors as may be required by any rules or guidelines promulgated by the City’s Department of Public Works, Bureau of Contract Administration (Department), which will have responsibility for administering the Ordinance.
- Additionally, prior to taking any adverse action the employer must provide the applicant with a “Fair Chance Process.” This process allows the applicant at least five business days to review a copy of the written assessment and provide information regarding the accuracy of the criminal record or any other information including but not limited to evidence of rehabilitation or other mitigating factors. The employer must consider this new information and provide a written reassessment. If after performing the reassessment, the employer still decides to take adverse action against the candidate, the employer must notify the candidate and provide the applicant with a copy of the reassessment.
No Retaliation: An employer may not take any adverse employment action against an employee for asserting his or her rights under this ordinance. Activity protected from retaliation is broad, including but not limited to complaining to the City regarding an employer’s compliance or anticipated compliance, opposing a practice proscribed by the ordinance, participating in proceedings related to the ordinance, seeking to enforce his or her rights or otherwise seeking to assert any rights under the ordinance.
Notice: An employer must (1) affirmatively state on solicitations or advertisements seeking applicants for employment that the employer will consider applicants with criminal histories in a manner consistent with this law; (2) post a notice in a conspicuous place at each worksite informing applicants of the provisions of this ordinance.
Record Keeping: An employer must retain all records related to an applicant’s employment applications for a period of three years.
Enforcement: an applicant may bring a civil action an employer and is may seek the penalties set forth in the ordinance as well as any other legal or equitable relief appropriate to remedy the violation. Before filing a private lawsuit against an employer the applicant must report the alleged violation to the City’s Department of Public Works, Bureau of Contract Administration, which must be filed within one year of the alleged violation, and a determination before a hearing officer has been reached, including conclusion of any hearing. Any civil action must be filed within one year of the completion of the Department’s enforcement process or the issuance of any decision by a hearing officer, whichever is later.
Penalties for violations of the notice and recordkeeping requirements are set at $500. Violations of other provisions are set at $500, $1,000, and $2,000 for the first, second, and third-or-subsequent violation respectively. The Department will not impose any penalties or fines until July 1, 2017. Before that date, the Department will only issue written warnings.
Employers should review existing applications and policies to ensure that they are in compliance with the ordinance. Additionally, it will be critical to provide appropriate training for managers and supervisors responsible for hiring decisions. The training should cover both the scope of permissible inquiries as well as implementation of the “Fair Chance Process.” Employers may also wish to take the opportunity to review their pre-employment screening policies with respect to running background checks and credit checks as regulated by both federal and state law.