Archive for the ‘Employment Law’ Category

Governor Brown recently signed SB 459, employment-related legislation aimed at that ever-complicated pas de deux: employee versus independent contractor classification. Under the new law, there are serious consequences for any employer who willfully misclassifies an employee as an independent contractor, as well as any person advising an employer that the employee can be classified as an independent contractor.  There are also civil penalties beginning at $15,000, as well as additional civil damages, reports to the State Contractor’s Licensing Board for contractor employers, and posting (a lá “The Scarlet Letter”) of the employer’s violation in a public area or employer’s website for one year if the employer is found to be in violation.

AB 469, signed by Governor Brown and effective January 1, 2012, adds some expensive teeth to the enforcement of the Labor Code by the Division of Labor Standards Enforcement (DLSE).  Among the many changes harkened by AB 469, the Labor Code has now been amended to make the willful violation of specified wage statutes or orders a misdemeanor.   Additionally, the law is amended to expand from one year to three years the time in which the DLSE may collect statutory penalties or fees.

California employers have new notice requirements beginning January 1, 2012.   AB 469 goes into effect on January 1, 2012, and as a result, private employers in California must provide written notice to non-exempt new hires of the following: (1) rate(s) of pay, (2) meal or lodging allowances claimed as part of the minimum wage, (3) the regular payday(s), (4) the name(s) of the employer, including any “doing business as” names, (5) the employer’s physical address or principal place of business, and a mailing address if different, (6) the employer’s telephone number(s), (7) the name, address and telephone number of the employer’s workers’ compensation insurance carrier, and finally (8) “Any other information the Labor Commissioner deems material and necessary.”  With certain exceptions, employers must also give written notice to employees within seven days if any of the above information should change during the course of employment.  The Legislature directed the Labor Commissioner to prepare a template for employers to use that complies with the notice requirements, but the better practice is to provide the information in writing to new hires even if the Labor Commissioner’s template is not yet available.

Discrimination based on pregnancy is illegal.  These days, a number of factors are making pregnancy discrimination and the rights associated with an employee’s pregnancy more relevant than ever.  Women are more likely to work while pregnant.  About 66 percent of first-time mothers between 2006 and 2008 worked during their pregnancy, compared with 44 percent in the early 1960s.  First-time mothers are working later into their pregnancies than before.  About 88 percent worked into the last trimester, while 65 percent worked into the last month of pregnancy.  Finally, eight out of 10 mothers who worked during their pregnancies returned to work for the same employer within a year of the birth.  About 7 out of 10 of these women returned to a job at the same pay, skill level and hours worked per week.  (Statistics from U. S. Census Bureau.)

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On October 7, 2011, the procedural and practice regulations for the Department of Fair Employment and Housing became effective in the California Code of Regulations.   The regulations can be found beginning at California Code of Regulations, Title 2, section 10000 through section 10066.  The regulations govern the Department’s practices and procedures with respect to the filing, investigation and conclusion of complaints alleging violations of any law the Department enforces (employment discrimination, Unruh Civil Rights Act, Ralph Civil Rights Act, Disabled Persons Act and housing discrimination complaints).   Practitioners and employers alike now have ready access to the Department’s procedures, which should go a long way toward clarifying a sometimes obscure complaint process.

California’s Fair Employment and Housing Act (“FEHA”) prohibits employment discrimination based on a disability, real or perceived.  In employment discrimination cases, it is the employee’s burden to demonstrate that he/she (1) suffered from a disability, (2) could perform the essential duties of the job with or without reasonable accommodation, and (3) suffered an adverse employment action (termination, demotion, etc.) because of the real or perceived disability.

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Words are Not Enough

Humboldt County employers know that having an written sexual harassment policy is a critical practice.  The United States Court of Appeals for the Ninth Circuit recently released an opinion that reads like a cautionary tale about excellently-written sexual harassment policies that don’t get enforced.  (See EEOC v. Prospect Airport Services, Inc., 2010 DJDAR 14107, Sept. 3, 2010.)  The employer had a written sexual harassment policy, signed by employees, that encouraged employees to report sexual harassment to their immediate supervisor and promised that the employer would “investigate each complaint in a prompt and proper fashion.”  In this particular instance, a male employee reported sexual harassment by a female employee to three different supervisors in the chain, saying that he just wanted the harassment to stop.  The last  supervisor to receive the complaint responded that he didn’t want to get involved in a personal matter, and spoke to the offending employee once about her behavior.  After approximately five month of harassment, even subsequent to the supervisor counseling the offending employee, the employer terminated the male employee, basically for his bad attitude.  His complaint against the employer has now been litigated before a United States District Court of Appeal—an expensive proposition for any employer.

In short, employers must enforce their sexual harassment policies, or they face credible complaints of harassment.

The United States Supreme Court expanded liability against employers, by holding that employers can be liable under Title VII of the Civil Rights Act for firing a third party as retaliation against an employee complaining of discrimination.

Humboldt County employees now have broader protection against retaliatory firings thanks to a recent decision by the United States Supreme Court.  On January 24, 2011, the Supreme Court of the United States issued an 8-0 decision in the case of  Thompson v. North American Stainless.  This decision held that Title VII of the Civil Rights Act of 1964 (“Title VII”) extends to third parties in certain circumstances.  In summary, an employee was terminated because another employee filed a sexual discrimination suit with the EEOC. The employee who was terminated was engaged to the employee who filed the sexual discrimination suit.  The Court held that the purpose of Title VII is to provide broad protection  against discrimination to employees.  The Court went on to state that this protection extended to third parties who were retaliated against in an effort to injure the party complaining of discrimination.  Writing for the majority, Justice Scalia stated that Title VII’s anti-retaliation provision extends to anyone within the “zone of interest” that the statute seeks to protect.

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A recent Department of Fair Employment and Housing (DFEH) case highlights the potential costs of failing to engage in the interactive process with employees or making adverse employment decision against an employee based on an employee’s disability.  The settlement is a reminder that employees should be accommodated so long as they are capable of performing the essential functions of their jobs.

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In November 2010, the California Supreme Court clarified that employees may seek what are commonly referred to as Section 203 penalties (referring to Labor Code section 203) for unpaid wages (including meal and rest period violations) for up to three years after the wages were due (which, in many cases, is three years after the last day of employment).

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