Contributors

Thursday, June 30, 2016

Discrimination Case Against UC Regents is Heading Back to Court

Karen Natividad

Opinion By Justice Aaron
Daily Appellate Report; June 22, 2016

In February 2010, Deborah Moore became the Director of Marketing at UCSD's Marketing and Communications Dept.  In June, Kimberly Kennedy became the Executive Director of the Department.  In early September, Moore was diagnosed with a heart condition and had to temporarily wear a "LifeVest."  Kennedy allegedly became "hostile" and "snippy" and began eliminating Moore's "main responsibilities" after becoming aware of Moore's medical condition.  This led Moore to believe that Kennedy was trying to get rid of her, which Kennedy eventually did on February 5, 2011, citing "lack of work" and budgetary constraints.  Moore sued the Regents of the University of California alleging disability and retaliation claims under, among other things, the Fair Employment and Housing Act (FEHA). The trial court ultimately granted summary judgment in favor of the defense.

Reversed in part and remanded. Under the three stage burden-shifting test for FEHA discrimination claims in McDonnell Douglas Corp. v. Green, the plaintiff has the initial burden to establish a prima facie case of discrimination.  If successful, the burden shifts to the employer to demonstrate that its  action was taken for a legitimate, non-discriminatory reason.  If sustained, the plaintiff may demonstrate that the proferred reason is false or pretextual.  Here, only the last step was in dispute. The trial court rejected Moore's proffer.  However, the timing of Moore's firing despite her "rapid ascension in the Department," Kennedy's belief that Moore was not healthy enough for the job, and Kennedy's failure to follow policies or procedures provided sufficient evidence from which the trier of fact could infer that the proferred reasons for Moore's termination may have been untrue or was a pretext for disability discrimination.  Hence, summary judgment on Moore's FEHA discrimination claim was improper.  The court likewise overturned the judgment as to her other claims with the exception of the FEHA retaliation claim.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Bank of America Settles Wage and Hour Class Action for $2.25 Million

California Labor Law News

https://calaborlawnews.com/legal-news/bank-of-america-national-association-21305.php 

Oakland, CA: Final approval has been granted for a proposed settlement in a California Wage and Hour Lawsuit against Bank of America alleging improper classification of some employees. The settlement, granted final approval on January 14 of this year, is worth $2.25 million.

According to court documents, plaintiff Zelma Brawner was an employee of the Bank of America in California for almost three decades at the financial institution’s back-office facility located in Concord. Brawner alleged in her California Wage and Hour class action that the defendant misclassified dedicated service directors (DSDs) as administrative employees - denying anyone working as a DSD overtime pay.

The DSD is a kind of personal concierge available to bank customers and clients, and according to the plaintiffs, “If the customer wishes to open a new account, close out an old account or inquire about the status of a transaction in an existing account, the customer can contact the DSD and expect a personalized and prompt response,” the employees said in the motion. “The Bank did not pay any overtime premium pay to the DSDs because it classified them as ‘administrative’ employees who are ‘exempt’ from the overtime protections set forth in Wage Order 4.”

In her California wage and hour lawsuit - first brought in June 2014 - Brawner cited no fewer than five violations to California wage and hour laws: failure to pay overtime wages, failure to provide accurate itemized wage statements, willful failure to pay all wages due within 72 hours after separation from employment, violation of California’s unfair labor law, and violation of the Labor Code Private Attorneys General Act.

The defendant, Bank of America, is reported to have denied the allegations, but agreed to the settlement as a pathway to avoid a costly and lengthy litigation.

In her summation granting final approval of the settlement, the judge in the case noted that “litigation poses risks and is expensive, and an evaluation of the strengths and weaknesses of the plaintiff’s and the defendant’s cases militates in favor of settlement,” Judge Yvonne Gonzalez Rogers wrote in the order granting final approval. “Second, the settlement treats class members fairly, allocating the money to them based on a formula weighted by their annual salary, estimated overtime hours and eligible workweeks.”

The settlement is reported to cover DSDs, treasury service consultants and senior treasury service consultants numbering 133 in total and having worked for Bank of America at the Concord facility from May 9, 2010 through January 14 of this year, the date at which the California Wage and Hour Settlement was formally approved.

Following dispensation for court costs, legal fees and other deductions, some $1.6 million will be available for class members according to the judge’s distribution template, noted above.

The case is Brawner v. Bank of America National Association, Case No. 3:14-cv-02702, in US District Court, Northern District of California.


*For more information, please visit www.BeverlyHillsEmploymentLaw.com

Wednesday, June 29, 2016

Denying Transgender Extern Use of Women’s Restroom Supports Failure-to-Hire Claim

By Kathleen Kapusta, J.D.


http://www.employmentlawdaily.com/index.php/news/denying-transgender-extern-use-of-womens-restroom-supports-failure-to-hire-claim/

June 28, 2016

Allegations by a transgender woman that during her externship, her supervisor told her she could not use the women’s restroom and refused to allow her to participate in an examination of a female patient because “only females are allowed beyond this point,” and that the supervisor told others on the day before she was terminated from the externship that “he-shes . . . and gays will need to answer to Jesus some day” were sufficient to allow her Title VII and NYHRL failure-to-hire claims to survive dismissal. Because the plaintiff, however, was never actually the defendant’s employee, but rather an unpaid extern, her other discrimination claims were dismissed by the federal district court in New York (Carr v. North Shore – Long Island Jewish Health Systems, Inc., June 23, 2016, Seybert, J.).
Selected for the externship without an in-person interview, the plaintiff interviewed for a full-time position with the defendant prior to the start of the externship and was told that the successful completion of the program would result in a job offer. After she began her externship, she alleged that her supervisor consistently demeaned her in the presence of others, yelled at her numerous times, screamed “what is wrong with you,” and belittled her by making her package dog treats for a pet fair.
Use the public restroom. She also claimed she was repeatedly locked out of the bathroom used by female employees and that when she attempted to access it, she heard “chatter” and was subjected to “stares.” On one occasion, she alleged, after encountering a locked ladies room, she asked her supervisor why the bathroom was locked and was told “to use the public restroom, and not the restroom designated for the female employees in the unit where she served as an extern.” She also claimed that prior to the examination of a female patient, she was “left behind a closed door” and told by her supervisor that “only females were permitted beyond this point.”
Answer to Jesus. About a month after she started the externship, she alleged that her supervisor asked about her religion and when replied that she belonged to a church that “catered to alternative lifestyles,” her supervisor told her Jesus did not recognize such a religion. Later that day, she purportedly overheard her supervisor telling a patient’s mother that her church was “not a religion that is recognized by Jesus and people like her, and the he-shes, . . . and the gays will need to answer to Jesus some day.” The following morning, she received an email asking her not to return to the externship.
Claiming that it was the defendant’s custom and practice to offer permanent positions to externs upon successful completion of the program, she sued under Title VII and the NYHRL alleging it failed to hire her based on sex and religion.
“I’m not sure.” The court first rejected the defendant’s contention that the plaintiff’s allegations should be dismissed as “speculative” because she questioned in her final email to the defendant whether or not she was fired because of her gender, stating “was it my Gender, I’m not sure.” Whether or not she subjectively believed at the time she was terminated that she was the victim of discrimination was not dispositive with respect to the element of intent, said the court.
Failure to hire. As to her allegation that the defendant failed to hire her because of her gender, her second amended complaint provided enough circumstantial evidence of discriminatory intent to allow her claim to survive the defendant’s motion to dismiss. Although much of the alleged conduct lacked a tangible link to a discriminatory purpose, her claims that her supervisor made specific negative comments about her gender on three separate occasions together with the fact that she was terminated the day after the supervisor made her last comments about her gender and religion were sufficient to allow her failure to hire claims to proceed to discovery, said the court, denying the defendant’s motion to dismiss in part.

*For more information, please visit www.BeverlyHillsEmploymentLaw.com

U.S. Supreme Court Refuses to Hear Home Care Case

DOL home care rule stands in wake of petition denial


By Pamela Wolf, J.D.

http://www.employmentlawdaily.com/index.php/news/dol-home-care-rule-stands-in-wake-of-petition-denial/
June 28, 2016
The Supreme Court has declined to take up a challenge to the Labor Department’s revised domestic worker regulations that extend FLSA minimum wage and overtime protections to home care workers, leaving the final rule in place. On June 27, the Court denied the petition for certiorari in Home Care Association of America v. Weil (Dkt. No. 15-683), as well as several other petitions filed in labor and employment cases.
Home care rule. In Home Care Association of America, the D.C. Circuit upheld the so-called home care rule, despite a district court’s earlier conclusion otherwise. The questions that the Justices have declined to address are whether:
  • The Court intended in Long Island Care at Home, Ltd. v. Coke to allow the DOL to deprive all third-party home care employers (who employ more than 90 percent of all home care employees) of their statutory right to avail themselves of FLSA exemptions to overtime.
  • The D.C. Circuit erred in finding that Congress intended to exclude employees of third-party employers from the home care exemptions, thereby conflicting with Coke’s contrary reading of congressional intent and creating a conflict among the circuits.
  • The DOL’s new rule should be found to be unreasonable due to the agency’s failure to meaningfully address the relevant factors of unaffordability and lack of adequate state funding of the increased costs of home health care under the new rule.
Secretary of Labor Thomas Perez quickly issued a statement applauding the High Court’s decision not to take up the case: “Today’s decision by the court not to review a challenge to the Final Rule ensures that the rule can fulfill President Obama’s vision of an economy where hard work pays off and responsibility is rewarded. That will mean greater economic stability for so many hard-working people. For everything they do for our families, they deserve—and now they will get—a fair shot at being able to take care of their own. The final rule will also mean a more stable and professional home care workforce, benefitting consumers of these services and better meeting the needs of an aging population.”
* For more information, please visit www.BeverlyHillsEmploymentLaw.com

Monday, June 27, 2016

Proposed Bill to Establish Working Conditions for Indoor Workers in California

June 18, 2016

https://calaborlawnews.com/legal-news/division-of-occupational-safety-health-connie-leyva-21545.php

Sacramento, CA: We should know in a little more than a year what Cal-OSHA, the Division of Occupational Safety and Health for the state of California, comes up with in terms of proposals to regulate indoor working conditions with an aim to setting standards for workers who toil indoors.

Such a standard for outdoor workers has been on the books since 2005 - and regularly revisited - in an effort to protect outdoor farm and construction workers from the often intense heat and high sun associated with toiling out in the fields or within a hot construction site. Meal breaks and rest periods, the availability of water and the provision for shaded areas have all been aimed at avoiding heat exhaustion - or worse - heat-related deaths.

Now, Senator Connie Leyva (D-Chino) wants the same kind of standards for indoor workers. Leyva claims that employers such as Amazon, which boasts a climate-controlled and managed environment within its fulfillment centers, are actually in the minority.

Sun exposure within the context of an indoor working environment is not an issue. But temperature can be - either too hot or too cold, with the potential for stale air in both situations. The San Bernardino Sun (5/7/16) reports that in a 2011 survey of workers by Warehouse Workers United, a majority of respondents claimed that excessive heat and cold were a problem, with indoor temperatures reaching as high as 125 degrees Farenheit on occasion.

Critics of the proposed bill claim that such efforts would inhibit growth in the inland logistics industry and hurt the economy. But Leyva isn’t advocating that employers install expensive climate-control systems in their facilities.

Rather, she seeks a set of standards akin to those currently protecting outside workers. The timing of rest periods - and the frequency thereof - would be governed by temperatures in the building. Access to cold water would be another requirement, together with the availability of a climate-controlled “retreat area” to which a worker could retire for a few minutes for relief from excessive heat or excessive cold.

Leyva told the San Bernardino Sun that benchmarks are needed for even so-called “good” employers who advocate for their employees, and play by the rules. “Even good employers don’t have a standard - what kind of access to water, what is the acceptable temperature?” Leyva said in comments published by the San Bernardino Sun.

“The (Division of Occupational Safety and Health) would come up with and propose a standard,” Leyva continued. “I don’t believe they would say, ‘Put in a multimillion-dollar system.’”

Leyva’s bill calls for Cal-OSHA to come up with a set of proposals by July 1 of next year.


*For more information, please visit www.BeverlyHillsEmploymentLaw.com

OSHA Requires Hospitality Industry to Report Injuries Online, Allows Media to Report Bad Actors

By Valerie Butera
http://www.natlawreview.com/article/osha-s-new-electronic-recordkeeping-rule-new-burdens-hospitality-industry
June 23, 2016
On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published its long-awaited electronic recordkeeping rule (“final rule”). The final rule creates numerous new recordkeeping obligations and additional administrative burdens for hospitality and other employers. Many employers will now be required to submit injury and illness information to OSHA electronically. OSHA will then attempt to remove identifying information from the records and publish them on a searchable database on its website. The final rule also includes several new anti-retaliation provisions that provide new protections for employees reporting work-related injuries and illnesses.

The Basics

The final rule requires certain employers to electronically submit to OSHA the injury and illness information that they are already required to keep under existing regulations. Specifically, establishments with 250 or more employees that are currently required to keep injury and illness records must electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Incident Report). Establishments with 20 or more employees but fewer than 250 that conduct work in industries that OSHA considers highly hazardous must electronically submit information from Form 300A annually.
Importantly, hospitality is included in the list of industries that OSHA deemed highly hazardous. Entities within the hospitality industry subject to the requirements of the final rule include a laundry list of facilities, such as hotels, motels, casino hotels, hotel management services, health spas that offer accommodations, and tourist and motor lodges, just to name a few.
The final rule will be phased in. New anti-retaliation protections included in the final rule will become effective by August 10, 2016. All establishments required to submit electronic records must submit their annual Form 300A to OSHA by July 1, 2017. On July 1, 2018, establishments with 250 or more employees must submit Forms 300A, 300, and 301. Establishments deemed highly hazardous with 20–249 employees will continue to submit only Form 300A. Beginning in 2019, the submission deadline will change from July 1 to March 2. OSHA State Plans must adopt rules that are substantially identical to the final rule within six months of its publication.

Hospitality Employers’ Obligations to Employees

Hospitality employers must involve their employees in the injury and illness recordkeeping process by informing them of how to report a work-related injury or illness within the establishment and the procedure used by the employer to report such incidents to OSHA. Employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately—that is, the procedure cannot have the effect of discouraging employees from reporting a workplace injury or illness. Accordingly, an employer must also inform employees that (1) they have a right to report work-related injuries and illnesses, (2) they will not be discharged or in any manner discriminated against for reporting work-related injuries and illnesses, and (3) the employer is legally prohibited from discharging employees or discriminating against them in any way for reporting a work-related injury or illness.

Hospitality Employers’ New Challenges and Concerns

The final rule presents numerous challenges and concerns for hospitality employers. First, OSHA has stated that it will use the information that it collects as employers comply with the rule to identify new bad actors—if an employer has a higher-than-average injury and illness rate, the chances of its establishment being visited by compliance officers will dramatically increase.
Second, although hospitality employers are required to submit the recordkeeping forms to OSHA on a secure web-based application, if the application is hacked, the personal information of countless employees could be exposed before OSHA has the opportunity to remove such information from the records. Once the forms are received by OSHA, the agency will “scrub” any personal identifiers from them and place them on a publicly available searchable database on OSHA’s website. This step also opens the door to an inadvertent disclosure of private employee information.
Third, the public exposure of work-related injury and illness information gives OSHA another avenue with which to continue its campaign of shaming employers that it believes are bad actors before they are able to defend themselves, as the press will have access to this information.
Fourth, the public dissemination of work-related injury and illness information will aid unions in targeting businesses for unionization—that is, unions will have unfettered access to the lists of businesses that have higher injury and illness rates and may, therefore, find employees more interested in becoming unionized.
Last, the final rule gives OSHA a new weapon against employers—broad discretion to issue citations if the agency considers any part of an employer’s procedures for reporting a work-related injury and illness to be “unreasonable.”
For more information, please visit www.BeverlyHillsEmploymentLaw.com

Friday, June 24, 2016

Labor And Unions Can Agree On This: Congress Should Act On Immigration

Marilyn Geewax

June 23, 2016 

 http://www.npr.org/sections/thetwo-way/2016/06/23/483276929/labor-and-business-can-agree-on-this-congress-should-act-on-immigration 

Businesses and unions often disagree on public policy.  But after the Supreme Court's tie vote on immigration Thursday, company executives and labor leaders united to call on Congress to settle the issue. 

The high court's 4-4 deadlock means President Obama's plan to defer deportation for millions of workers who are in the country without visas has been blocked.  A majority of justices would have been needed to overturn a lower court's ruling that Obama's plan was beyond the power of the executive branch.  But the Supreme Court stalemate did not establish a precedent, leaving the door open for lawmakers to step up.  Without the Obama policy on deportations in place and no comprehensive immigration plan completed by Congress, employers have been left confused about which workers might suddenly be deported.  "Congress must tackle the underlying issues that keep our system from working for our country and our economy," said Motorola Solutions CEO Greg Brown, speaking on behalf of the Business Roundtable. 

Business groups point to a 2013 study by Harvard's Center for Immigration Studies.  It said immigrants added $1.6 trillion to the annual U.S. gross domestic product.  And unions worry that without legal clarity, people working in the country without proper documents aren't able to assert their rights on the job, and that makes them more open to exploitation.  "This is far from over," Rocio Saenz, executive vice president of the Service Employees International Union, said in a statement.   To win immigration reform in Congress, "we will continue to mobilize voters to elect leaders – from the highest office to the down-ballot."  The administration had wanted to defer deportation for those who have lived in the U.S. for five years, have clean records and are the parents of children who are either U.S. citizens or legal permanent residents. 

At a briefing at the White House, Obama said the Supreme Court's tie vote brings "frustration to those who seek to grow our economy and bring a rationality to our immigration system."  Getting Congress to settle immigration questions has long been a top priority for the tech industry, which hires many foreign-born workers.  FWD.us, a group of executives from companies like Google and Netflix, bemoaned the high court stalemate, and condemned congressional inaction.  "More than ever, Congress must step up and do its job to fix our badly broken system.  We will work tirelessly to ensure that they do," FWD.us President Todd Schulte said in a statement. 

The White House Council of Economic Advisors issued a report in late 2014 that said the Obama approach to deportation would expand the labor force by nearly 150,000 workers and real GDP by $90 billion over a decade.  House Speaker Paul Ryan, called the Supreme Court tie "a win for Congress."  At a press conference, he said "the president doesn't write laws; Congress writes the laws."  AFL-CIO President Richard Trumka promised in a statement that to get Congress to act, "we will redouble our organizing efforts."  Noting that Congress also has not voted on Obama's Supreme Court nominee Merrick Garland, Trumka said deadlocked vote confirms "our systems are broken and will remain so until U.S. senators do their job." 

* For more information, please visit www.BeverlyHillsEmploymentLaw.com