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Archive for the ‘Employment Law Blog – CA’ Category

Guidance on Compensation for After-Hours Work on Mobile Devices

Posted on: September 1st, 2017

By: Margot M. Parker

1[2]Of the many modern day conveniences brought to us by the rise of technology and widespread use of smartphones, one may be a double-edged sword.  That is, you’re never off work.  Or at least, so it seems.  This is especially true for employees who are given smartphones by their employers as a means for communicating on work-related matters.  And significantly, it raises questions regarding an employer’s duty to compensate non-exempt employees for after-hours work conducted on such devices.

The issue arises under the Fair Labor Standards Act (FLSA), which requires employers to pay employees for all hours they are “suffered or permitted” to work, with overtime compensation for hours exceeding 40 per week.  The FLSA, however, does not require an employer to pay for work it did not know about or have reason to know about it, including after-hours work on a mobile device.

Recently, in the case of Jeffrey Allen, et al. v. City of Chicago, the Seventh Circuit upheld a U.S. District Court’s decision denying claims brought by a class of police officers against the Chicago Police Department (CPD) based on its failure to compensate the officers for off-duty time spent using BlackBerry devices for work-related communications.  While the Court recognized that off-duty work on mobile devices is compensable work, it found the officers knowingly failed to report such time, despite the CPD’s reasonable reporting procedures.  The Court held in favor of the CPD based on its findings that: (1) the CPD it did not know or have reason to know of the officers’ hours, and (2) its time reporting procedure was well known and would have allowed the officers to be compensated, had it been used.

In reaching its decision, the Seventh Circuit considered similar holdings by the Sixth and Ninth Circuits, both of which recognize the importance of maintaining reasonable time reporting procedures and an employee’s duty to follow the same:

  • “When the employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee.”  White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012).
  • “Where an employer has no knowledge that an employee is engaging in overtime work and . . . deliberately prevents the employer from acquiring knowledge, the employer’s failure to pay is not a violation of [FLSA § 207].”  Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981).

To avoid suits like Allen, the Seventh Circuit’s decision suggests employers should implement a policy for compensating employees for work conducted on mobile devices and clearly articulate it to employees to avoid the perception that reporting such time is discouraged.  Or if such overtime work is unpermitted, employers should avoid issuing smartphones to non-exempt employees or clearly state that such devices should not be used after work hours.

Finally, it is important to remember that, notwithstanding an employee’s duty to report all time, employers should make reasonable, good-faith efforts to track all time worked by non-exempt employees and compensate accordingly, as an employer may be found liable for failing to pay an employee for unreported overtime the employer should have known about, including after-hours work on smartphone devices.

For more information, please contact Margot Parker at [email protected].

 

CALIFORNIA’S NEW REGULATIONS ON TRANSGENDER EMPLOYEE PROTECTIONS

Posted on: August 9th, 2017

By: Melissa M. Whitehead

blog

Effective July 1, 2017, new regulations went into place to protect transgender employees (Cal. Code Regs. §§ 11030-11034). The new regulations are intended to provide “enhanced clarity” and also lists specific types of prohibited conduct and/or protections.

New defined terms are key to the new regulations. “Gender Identity” is now defined as “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.” (New portions underlined.) “Transitioning” is defined for the first time, as ““a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.” This process is not expressly defined, but can include anything from name or pronoun usage to undergoing hormone therapy, surgeries, or other medical procedures. Discrimination against a person who is transitioning, has transitioned, or is perceived to be transitioning, is now specifically prohibited.

Under the new regulations, employers –

  • Must use requested name/pronouns, except where legally obligated (e.g., tax documents);
  • May not ask for identification/documentation of sex, gender, gender identity, or gender expression, and cannot discriminate if a job applicant declines to designate;
  • Must permit employees to perform job/duties that correspond to the employee’s gender identity or gender expression; and
  • May not ask employees to comply with dress/grooming standards inconsistent with gender identity or expression.

Employers also must provide equal access to comparable, safe, and adequate “facilities” that correspond to the employee’s gender identity or gender expression. Here, a “facility” is more than just a bathroom, and can include locker rooms, showers, etc. An employer cannot require “proof” or documentation of any medical treatment or procedure, or any identity document, for use of a particular facility. Interestingly, the new regulations also require employers to provide “feasible alternatives” to protect the privacy interests of all employees. These can include, for example, locking toilet stalls, staggered shower schedules, shower curtains, or other methods of ensuring privacy.

One final note to employers – typically in discrimination cases, an employer has an available defense where a certain religion, age, gender, etc., is a “bona fide occupational qualification.” Examples of this defense include requiring a Church’s minister to be a particular religion or a women’s’ restroom attendant to be female. However, the new regulations specifically state that this defense will not apply to discrimination based on an individual being transgender, gender nonconforming, or where an individual’s sex assigned at birth is different from the sex required for the job.

California employers faced with implementation of these new regulations are entering uncharted territory and though the obligations and expectations of employers is now somewhat clearer, much is still left murky.  Employers with questions or issues raised by these new regulations are strongly encouraged to seek advice of experienced employment counsel.

If you have questions or would like more information, please contact Melissa Whitehead at [email protected].

 

 

HOW FAR CAN AN EMPLOYER GO IN USING APPLICANTS’ AND EMPLOYEES’ CRIMINAL HISTORY?

Posted on: August 7th, 2017

By: Rebecca J. Smith

blogCalifornia has not banned an employer’s ability to use the criminal history of an applicant or employee in making an employment decision adverse to the individual, however additional hurdles have been put into place for employers with the implementation of regulations from the Fair Employment and Housing Council (FEHC) which became effective July 1, 2017.

Practically what does this mean for an employer? First, it means that an employer cannot use criminal records and information if such use would have an adverse impact on individuals in a legally protected class designated by the Fair Employment and Housing Act (FEHA). The regulations require employers to show that the use of the criminal history is appropriately tailored, job related and consistent with a business necessity. To do this, the employer must perform an individualized assessment of the applicant and employee, take into account the nature and gravity of the offense, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought. Even if the employer does all this the employee still may challenge the employer’s decision by demonstrating that there was a less discriminatory alternative that the employer could have used.

Additionally, under current state law there are matters which an employer may not consider:

  • An employer may not inquire into or consider any non-felony misdemeanor conviction related to marijuana possession that is more than 2 years old
  • An employer may not inquire into or consider information related to arrests, convictions or other proceedings that occurred while an applicant or employee was subject to the process and jurisdiction of the juvenile court
  • An employer may not inquire into or consider an arrest or detention that did not result in a conviction,
  • An employer may not inquire into or consider an offense which resulted in a referral to or participation in, any pretrial or post trial diversion program
  • An employer may not inquire into or consider a conviction that has been judicially dismissed or ordered sealed.

The take-away, employers with a “bright line” policy that disqualifies candidates with a criminal history or that disqualifies individuals with certain types of convictions will violate the FEHA. In light of the new regulations and the Department of Fair Employment and Housing’s (DFEH) more proactive enforcement efforts in the recent past, employers should reevaluate any practice that uses criminal history as a disqualification from employment. Employers should also keep an eye on the California Legislature as there is pending legislation to impose a state-wide ban on the review of criminal history before an offer of employment has been made.

If you have any questions or would like more information, please contact Rebecca Smith at [email protected].

A “Day of Rest” Clarified in California

Posted on: May 25th, 2017

By: Matthew Jones

Over the years there has been uncertainty regarding California Labor Code’s regulations regarding a day of rest. The applicable Labor Code sections are 552, which prohibits an employer from “caus[ing] [its] employees to work more than six days in seven”, and 556, which states that section 552 does not apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”

In the case of Mendoza v. Nordstrom, Inc., the Ninth Circuit asked the California Supreme Court to resolve three outstanding issues regarding the interpretation of those two Labor Code sections.  Mr. Mendoza sued Nordstrom, alleging it failed to provide him statutorily guaranteed days of rest.

The Supreme Court first addressed whether the day of rest protection applies on a rolling basis or a week-by-week basis. Under the weekly interpretation, the calendar is divided into seven-day blocks and there is guaranteed at least one day of rest in each block. Under the rolling interpretation, the day of rest is provided if the employee worked the preceding six days. During its analysis, the Court evaluated the text of the statutes and its history, as well as the Industrial Welfare Commission Wage Orders. Most importantly, the Court pointed out that the Legislature defined a “workweek” as any seven consecutive days, starting with the same calendar day each week. The workweek is determined by each individual employer.  Through its analysis, the Court ruled the day of rest provision should be interpreted on a weekly basis, thereby providing an employee at least one day of rest during each workweek.

The Court then addressed the exception to the day of rest issue regarding the instance an employee works six hours or less in any one day during the week. The Court analyzed the Legislature’s related provisions, as well as the applicability of the competing interpretations of Labor Code section 556. In response, the Court concluded this exception only applies if every daily shift that workweek involves six hours or less of work.

The final issue the Court evaluated is the meaning of “cause”. This term comes into effect as part of Labor Code section 552, which states an employer cannot “cause [its] employees to work more than six days in seven.” After evaluating the proposed definitions from both parties, the Court ruled that an employer has an obligation to apprise employees of their entitlement to a day of rest and must remain neutral regarding the employee’s exercise of that right. Simply put, the employer cannot encourage employees to forgo the day of rest or conceal the employee’s right to rest. However, the employer is not liable if the employee chooses to work a seventh day.

For any questions, please contact Matthew Jones at [email protected].

Breaking News – Puzder Withdraws from Consideration to be Secretary of Labor

Posted on: February 15th, 2017

By: Paul H. Derrick

Andy Puzder, President Trump’s nominee for Secretary of Labor, has withdrawn his name from consideration after being plagued by criticism since his nomination. Union leaders and prominent Democrats have been among his staunchest critics. Puzder’s decision to step down comes a day before his Senate confirmation hearing was set to begin. Just hours before the announcement of his withdrawal, media outlets had begun reporting that Republican officials advised the White House that Puzder lacked the votes needed for confirmation because at least four GOP senators intended to break ranks and vote against him. It remains to be seen who President Trump will nominate in his place.

For any questions, please contact Paul Derrick at [email protected].