The Employment Law Daily News for Feb 05, 2012
Don't MIss: Floyd, Skeren & Kelly’s 2012 Employment Law Conference
Fri, 03 Feb 2012 07:02:44 - Pacific Time
Floyd, Skeren & Kelly LLP, is pleased to announce its 2012 Employment Law Conference, which is an advanced course designed for employers, supervisors, managers, and any other professionals associated with human resources and employment law. The conference will cover important workplace topics such as: (1) The crucial overlap between workers' compensation and the FEHA/ADA, including medical leave, reasonable accommodation, the interactive process, benefit continuation, fitness-for-duty examinations, and return-to-work issues; (2) the California Family Rights Act, including leave requirements, notification obligations, eligibility criteria, definition of a serious health condition, medical certification, intermittent leave issues, benefits, reinstatement, and required forms; (3) An overview of the new legislation in effect as of January 1, 2012, including legislation related to Consumer Credit Reports; E-Verify; gender identity and expression; health benefits during pregnancy leave; the Wage Theft Prevention Act; and, a review of the most significant employment cases for 2011; (4) Tips on controlling an employer’s unemployment insurance tax rate, including the four elements required to successfully establish a misconduct defense; (5) A discussion of the 5 steps that can help reduce workers’ compensation costs including understanding the correct procedures regarding MPN notices, and properly completing the Workers’ Compensation Claim Form and Employer’s Report of Occupational Injury and Illness; (6) A review of recent case law and legislation related to social media, including sites such as Facebook, Twitter and Linkedin, in addition to a look at how recent NLRB advisory letters on social media may provide guidance on workplace policies and procedures; and, (7) An overview of the recent cases and legislation on employee misclassification, in addition to the five most common mistakes employers make when classifying individuals as independent contractors or classifying employees as exempt from overtime. More Details.
Read More...Court Upholds Consent Decree in Disability Discrimination Case
Fri, 03 Feb 2012 06:42:01 - Pacific Time
The U.S. Court of Appeals for the Eighth Circuit reversed a lower court decision that rejected a consent decree resolving an U.S. Equal Employment Opportunity Commission (EEOC) disability discrimination lawsuit against Pine City, Minn.-based Product Fabricators, Inc. The EEOC’s consent decree had been rejected by the lower court because it contained a provision requiring the court to continue its jurisdiction over the consent decree for the term of the decree – two years – in order to ensure that the parties complied with its terms. The EEOC had sued Product Fabricators in 2009 for allegedly violating federal disability discrimination laws when the company required employees to report their use of legal prescription drugs. Further, the EEOC charged that the company unlawfully terminated an employee for taking prescribed drugs for back pain. In reversing the lower court’s decision, the Eighth Circuit held that “[a] consent decree offers more security to the parties than a settlement agreement where the only penalty for failure to abide the agreement is another suit.” EEOC Regional Attorney John Hendrickson commented that, “Today’s ruling by the Eight Circuit reinforces a critical component of negotiated settlements in EEOC lawsuits which is the agency’s ability to guarantee compliance with important settlement terms through the immediate court enforcement…Continuing jurisdiction provisions in our consent decrees – as the Eighth Circuit reinforced today – serve as an important form of insurance for the public. Once the EEOC has reached a settlement with employer accused of discrimination, continuing jurisdiction provisions enable the EEOC to ensure that defendants will comply with civil rights laws for years to come.” Read More.
Read More...Tip of the Day: A Final Paycheck Must be Timely to Avoid Costly Waiting Time Penalties
Thu, 02 Feb 2012 20:38:47 - Pacific Time
In California, public policy favors the full and prompt payment of all wages due an employee at the end of an employment relationship. Thus, to ensure that employers comply with the laws governing the payment of final wages, the Legislature enacted Labor Code Section 203. It provides for the assessment of a penalty against the employer when there is a willful failure to pay the employee wages owed at the end of the employment relationship. The term "willful" as used in Labor Code Section 203, and as defined by the courts, does not require anything blameworthy or an evil intent, but only that the person knows what he or she is doing, is a free agent, and fails to perform a required act. Thus, the waiting time penalty will apply when the final pay is not paid according to the law, and ignorance of the law will not provide a means of avoiding the penalty.
The penalty will be assessed if the employer does not comply with the following time frames: 1) when an employee voluntarily quits his job, the final paycheck must be given to the employee within 72 hours (calendar days not working days) of when the employee actually stops working, unless the employee provides at least 72 hours advanced notice, in which case the final paycheck must be provided to the employee at the time of quitting (i.e. the last day of work); 2) if the employee is discharged, with or without cause, the employee must be paid immediately. Additionally, the final paycheck must include all wages owed, including vacation pay and other wages as defined in Labor Code Section 200, or the waiting time penalty will be assessed, even if the employee was given some of his or her wages timely.
The penalty is calculated based upon the number of calendar days that the paycheck is late, whether or not the employee was scheduled to work those days, and includes weekends and holidays, times the employee’s daily rate of pay, for up to a maximum of 30 days. Payment of the wages or the commencement of an action (i.e. filing a complaint in court) stops the penalty from accruing. However, filing a claim with the Division of Labor Standards Enforcement (DLSE) is not considered commencement of an action, and does not stop the penalty from accruing. Note: The waiting time penalty is not wages, thus, no deductions are taken from the penalty payment. Read More.
Read More...Cal/OSHA Issues Reminder for California Employers to Post Work-Related Injury and Illness Summary
Thu, 02 Feb 2012 17:31:03 - Pacific Time
The California Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH), also known as Cal/OSHA, is reminding all employers that the annual summary of all work-related injuries and illnesses (Form 300A, available on the DIR website), must be posted at their place of business during the period of February 1 through April 30, in a visible and easily-accessible area. Employers are required to fill out and post the form every year, even if no workplace injuries occurred. Information that must be disclosed on the form includes total number of cases with days away from work, total number of days injured or sick employees spent away from work, and the different types of injury or illness suffered. “Transparency and accountability are very important aspects of the employer-employee relationship,” said Cal/OSHA Chief Ellen Widess. “This form gives employees, former employees and their representatives access to worksite injury and illness data. Full and accurate reporting of injuries and illnesses is vital to understanding hazards in the workplace. It is also a good tool to determine where additional safety and health measures are needed.” Read more.
Read More...L.A. Fire Department Settles EEOC Harassment & Retaliation Case for Nearly $500,000
Wed, 01 Feb 2012 21:52:32 - Pacific Time
The Los Angeles City Fire Department has reached a settlement with the U.S. Equal Employment Opportunity Commission (EEOC) in the amount of $494,150, for alleged sexual and religious harassment and retaliation. Anthony Almeida, a firefighter/engineer employed since 1986 with the Los Angeles City Fire Department, filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC), in 2007, alleging harassment by fellow firefighters who continually made offensive comments of a sexual and religious nature. The EEOC investigation revealed that once Almeida’s co-workers learned of his lawsuit filed against the Catholic Church alleging that Almeida had suffered sexual abuse by a priest, several of his coworkers allegedly began mocking him, using explicit and offensive religious and sexual epithets. Almeida complained about the harassment to management officials, but the Fire Department allegedly failed to adequately halt or address it. Further, the EEOC alleged that Almeida had suffered retaliatory discipline for his participation in another equal employment opportunity investigation. Following a determination by the EEOC that there was reasonable cause to believe a violation of law occurred, the Los Angeles City Fire Department entered into a three-year conciliation agreement with the EEOC and Almeida, who was represented by private counsel. Aside from the monetary relief, the Fire Department agreed to provide widespread live anti-harassment training to all fire station chiefs and their subordinate staff, impacting every fire station in the city of Los Angeles and to publicize the settlement via a press release, among other injunctive relief Olophius Perry, district director for the EEOC’s Los Angeles District Office stated, “by working with the EEOC this way, the Department is sending a message that no further civil rights abuses will be tolerated -- a key responsibility of all employers.” Read more.
Read More...DOL Launches Equal Pay Application Development Contest
Wed, 01 Feb 2012 05:53:46 - Pacific Time
In an effort to develop new ways to eliminate the gender gap in pay, the U.S. Department of Labor (DOL) and its federal agency partners on the National Equal Pay Task Force, announced a contest for creating software applications that use the DOL’s data to promote equal pay for men and women. According to the DOL, women are still paid less on average than their male counterparts for doing comparable jobs, and the discrepancy is even more significant for minority women. The “Equal Pay App Challenge” is asking developers “to use publicly available data and resources to create innovative, easy-to-use apps that educate users about the pay gap and provide tools to combat it. The apps should improve the accessibility of pay data broken down by gender, race and ethnicity, and provide coaching on early career pay, pay negotiation or career mentorship.” More information, including a complete list of the contest's rules and requirements, is available at http://www.challenge.gov/labor. According to Secretary of Labor Hilda L. Solis, "Women make up nearly half of the U.S. labor force and play a vital role in the nation's economy…While progress has been made in recent decades, the pay gap continues to disadvantage many women, with consequences not only for them, but for their families and the economy as a whole."
Those applications that best meet the criteria for the challenge will be eligible to receive one of eight prizes, including scholarships to attend an eight-week immersive program on digital product innovation and entrepreneurship hosted by General Assembly, a campus for technology, design and entrepreneurship. The contest will be open for submissions from Jan. 31 until March 31; winners will be announced in connection with Equal Pay Day in April. Read More.
Read More...Employers Must Avoid Discriminatory Hiring Practices
Tue, 31 Jan 2012 21:53:14 - Pacific Time
Title VII of the Civil Rights Act of 1964 prohibits discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. In terms of hiring, employers must ensure that they are not excluding a particular class of protected individuals in violation of Title VII, such as all women. In a recent case, the Equal Employment Opportunity Commission (EEOC) charges that Mavis Discount Tire refused to hire women for a wide variety of positions even though some of the applicants had superior qualifications. The Millwood, New York-based company, which also operates as Mavis Tire Supply Corporation and Mavis Tire NY, sells tires and a variety of other automotive parts and services. The case involves the Mavis job positions of tire installers, mechanics, assistant managers, managers, and related positions. The EEOC alleges that since at least 2008, only one woman was employed in any of these positions out of approximately 800 employees. The EEOC also alleges that out of approximately 1,300 hires that Mavis made between 2008-2010 for the above listed positions, not one was female. Additionally, even though Mavis allegedly failed to properly maintain applications—which is itself a separate violation of federal law—the applications that were available indicated that Mavis rejected women with superior credentials and experience, and less qualified men were hired.
Anna M. Pohl, EEOC trial attorney, commented that “Women have been working in traditionally all-male fields like automotive services and sales for quite a while, but Mavis seems to be stuck in the past.”
For employers concerned about possible discriminatory hiring practices in their workplace, the Office of Federal Contract Compliance Programs (OFCCP) has created a Guide for Small Businesses with Federal Contracts, which contains helpful information even for those employers who are not dealing with federal contracts. Specifically, the OFCCP created a self-audit for employers to take in order to assess their hiring practices in the workplace, to ensure that discrimination is not occurring. On the issue of discriminatory hiring practices, the self-audit asks: (1) Were there women and minority applicants? (2) What were their qualifications? (3) How did their qualifications compare to the qualifications of the people who were hired? (4) Why did the decision-makers select those hired and not the women and minority applicants who seemed to have comparable qualifications? (5) Were all the qualifications necessary for successful performance of the job? Employers would be wise to keep this checklist as a guide when hiring and to take the self-audit created by the OFCCP to help ensure that they are not engaging in discriminatory workplace practices. For more information on the self-audit, click here.
Read More...DOL Issues Notice of Proposed Rulemaking to Amend FMLA
Tue, 31 Jan 2012 05:18:31 - Pacific Time
Secretary of Labor Hilda L. Solis announced that the U.S. Department of Labor (DOL) is issuing a notice of proposed rulemaking to amend the Family and Medical Leave Act (FMLA) by expanding military family leave provisions and incorporating a special eligibility provision for airline flight crew employees. The FMLA entitles eligible employees who are working for employers covered by the Act, to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to twelve workweeks of FMLA leave in a 12-month period for the birth, adoption or placement of a child, to care for a family member with a serious health condition, or because they are unable to work due to their own serious health condition.
Amendments to Military Family Leave
In 2008, the FMLA was amended to add special military family leave entitlements thereby providing an expanded leave entitlement which permits eligible employees who are the spouse, son, daughter, parent, or next of kin of a service member (National Guard, Reserves, or Regular Armed Forces) with a serious injury or illness incurred in the line of duty, to take up to twenty-six workweeks of unpaid, job protected FMLA leave during a single 12-month period to care for their family member (military caregiver leave), and to allow eligible employees whose spouse, child, or parent is called up for active duty in the National Guard or Reserves to take up to twelve workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave).
The current proposal expands coverage for military caregiver leave for the first time to include care for covered veterans with a serious injury or illness. The proposal includes the statutory amendment’s limitation on coverage to care for veterans to veterans who have been discharged within the five preceding years. In addition, the proposal expands military caregiver leave to cover serious injuries or illnesses resulting from the aggravation of a preexisting condition in the line of duty for both active duty service members and covered veterans.
The proposal also extends qualifying exigency leave to include employees whose family members serve in the Regular Armed Forces (in addition to the National Guard and Reserves). Further, the proposal adds the new requirement that the employee’s family member be deployed to a foreign country (this requirement applies to National Guard, Reserves, and Regular Armed Forces members) in order for the employee to qualify for exigency leave.
Airline Flight Crew Amendments
The proposal implements a new special minimum hours of service eligibility requirement for airline flight crew employees. Specifically, airline flight crew employees will meet the hours of service eligibility requirement under FMLA if they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee and have worked or been paid for not less than 504 hours during the 12 months prior to their leave.
The DOL has issued a fact sheet detailing the amendments. Read More.
Read More...Bay Area Business Owner Charged With 57 Underground Economy Violations by Insurance Commissioner Dave Jones
Mon, 30 Jan 2012 16:47:13 - Pacific Time
Insurance Commissioner Dave Jones announced that Frances Ann Doherty, 51, of Millbrae was arraigned in San Francisco Superior Court for 57 felony counts related to alleged payroll theft and workers' compensation insurance premium fraud. Doherty was arrested January 26, 2012 and her bail has been set at $750,000. Doherty is the owner of Doherty Painting & Construction, a painting contracting company that was awarded numerous public contracts with the City and County of San Francisco, San Francisco Unified School District and other public agencies. San Francisco District Attorney George Gascón stated, “We intend to prove that over the course of three years the defendant underpaid her employees and pocketed over $600,000 that the City thought it was paying for those wages, and defrauded her workers' compensation insurance carriers out of over $100,000 in insurance premiums. This conduct not only victimizes workers who are desperately trying to make a living in a very tough economy, it also hurts the honest businesses that were unable to successfully compete for these projects which the defendant was able to underbid and win as a result of this scheme."
It was further alleged that Doherty Painting workers were underpaid, that fraudulent information was allegedly provided by Doherty to public agencies that were doing compliance audits, allegedly in an effort to conceal the prevailing wage violations and allegedly provided fraudulent employee payroll information to Redwood Fire & Casualty and Zurich Insurance companies from September 2006 through June 2009, which allegedly allowed her to pay lower workers' compensation insurance premiums to these carriers. This arrest is a result of a joint investigation headed by Investigators from the San Francisco County District Attorney's Office and Detectives from the California Department of Insurance (CDI). "This case is an excellent example of inter-agency collaboration," said Commissioner Jones. "The underground economy is a real threat to California's law-abiding businesses and owners. Rooting out these bad actors and the fraud they commit is a top priority of my Department." Read more.
Read More...EEOC Has Developed Final Plan for Review of Significant Regulations
Mon, 30 Jan 2012 08:17:50 - Pacific Time
Pursuant to Executive Order 13563, 76 Fed. Reg. 3821 (Jan. 21, 2011), the Equal Employment Opportunity Commission (EEOC) has developed a Final Plan for Retrospective Review of Significant Regulations, consistent with the law, its resources and regulatory priorities. The Final Plan is posted on www.eeoc.gov at: http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm. The EEOC’s regulatory program enforces six employment nondiscrimination laws: (1) Title VII of the Civil Rights Act of 1964, as amended; (2) the Equal Pay Act of 1963, as amended; (3) the Age Discrimination in Employment Act of 1967, as amended; (4) Titles I and V of the Americans with Disabilities Act, as amended; (5) Sections 501 and 505 of the Rehabilitation Act, as amended; and, (6) Title II of the Genetic Information Nondiscrimination Act. The EEOC continues to accept public comments on the review of EEOC’s regulations. Read More.
Read More...Past Employment Law News Articles
• Employer Must Accommodate an Employee’s Religious Beliefs: Sun, 29 Jan 2012 21:22:09 - Pacific Time: Read More...
• Labor Commission Issues Updated FAQs on Wage Theft Prevention Act: Thu, 26 Jan 2012 20:06:53 - Pacific Time: Read More...
• NLRB Releases Second Report Detailing Social Media Cases: Thu, 26 Jan 2012 05:08:28 - Pacific Time: Read More...
• Court Rules Commissioned Employees Were Properly Classified As Exempt: Wed, 25 Jan 2012 05:07:05 - Pacific Time: Read More...
• EEOC Obtains Record Amount of Relief in 2011: Wed, 25 Jan 2012 03:02:42 - Pacific Time: Read More...
• Court Reverses $2 Million Dollar Judgment Against City of Los Angeles for Retaliation: Tue, 24 Jan 2012 06:53:04 - Pacific Time: Read More...
• Employee Terminated for Working Through Lunch Wins U.I. Appeal: Tue, 24 Jan 2012 05:19:49 - Pacific Time: Read More...
• Covered Employers Must Post Annual OSHA 300A Summary Form by February 1, 2012: Tue, 24 Jan 2012 04:33:04 - Pacific Time: Read More...
• Dual-Employers Issued $256,445 in Citations by Cal/OSHA for Unsafe Working Conditions: Mon, 23 Jan 2012 21:05:25 - Pacific Time: Read More...
• Determining if a Disability Exists Under the ADA is a Case by Case Determination: Mon, 23 Jan 2012 19:49:10 - Pacific Time: Read More...