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Posts Tagged ‘Harassment’

Wage & Hour Violations, Family Leave, Discrimination, Harassment

Posted on: May 22nd, 2020

By: David Daniels

These topics continue to generate conversation throughout workplaces across the country. No matter the size of your business, at some point you will encounter one of these regulations. For that reason, it’s important for supervisors and managers to understand the basics of employment laws and regulations to maintain proper compliance.  Here is a 30,000 foot view of the employment areas that can be the most troubling for the employer.

At-Will Employment

We all know that at-will employment means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without suffering legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.

Most organizations will define their employment policies in an employee handbook or manual, a job application or contract. Though not legally mandated, many employers require new hires to sign the employment handbook acknowledging that they have read and are aware of the policies in place.

State laws offer some general protection from at-will termination since most employers are required to provide the following within 24 to 72 hours of separation:

  • Final Paycheck
  • Benefits an employee is entitled to, such as severance or continued health insurance
  • Any statutory benefits, such as unemployment compensation or other forms of government benefits

If an employer violates the worker’s right through discrimination or harassment, the employee can sue for damages.

Age Discrimination in Employment Act (ADEA)

The Equal Employment Opportunity Commission (EEOC) describes this Act as forbidding age discrimination against people who are age 40 or older.  The law forbids discrimination in any facet of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits and any other term or condition of employment. While this act doesn’t protect employees under the age of 40, some states have established laws that protect younger workers from age discrimination. It’s important to know that it is not illegal for an employer to favor an older worker over a younger one, even if both employees are age 40 or older.  In recent years it has been legal and popular for employers to ‘buy out’ older employees by offering attractive severance packages to workers they wish to replace. If an employee accepts the package, they sign away their rights to sue for age discrimination.

Here are some requirements for employers that choose to take this path:

  • Workers must be given 21 days to review the agreement.
  • They have the right to review with an attorney at the cost of the employer.
  • Even after they have accepted the offer, they must be given 7 days to revoke the deal.
  • If you are letting two or more people go, you must give them 45 days to review and 7 days to revoke the deal if they choose to accept.

Americans With Disabilities Act (ADA)

According to the US Department of Justice, the ADA prohibits discrimination based on disability in employment, public accommodations, commercial facilities, transportation and telecommunications.

A person with a disability is defined by the ADA as:

  • An individual who has a physical or mental impairment that considerably limits one or more major life activities
  • A person with a history or record of such an impairment, or;
  • An individual who is perceived by others as having such an impairment.

In 2008, The Americans With Disabilities Amendments Act (ADAAA) was added to the original law. These amendments make important changes to the definition of the term disability. The purpose of this addition was to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability.

Potential disabilities in the ADAAA include:

  • Alcoholism
  • Asthma
  • Depression
  • Cancer in remission

The Fair Labor Standards Act (FLSA)

According to the Department of Labor, the FLSA establishes minimum wage, overtime pay, record keeping and child labor standards.  Arguably the hottest topic surrounding the FLSA is wage & hour violations. Employers with the best intentions can improperly classify a worker as FLSA exempt and then fail to pay the overtime wages they’re due, leaving the organization open to potential penalties and litigation.  No matter the size of your business, the Department of Labor is keeping close watch on wage and hour violations. Think it can’t happen to you? Here are just a few examples of some businesses that were not spared the wrath of the DOL:

  • A Florida roofing company was required to pay $239,893 in back wages to 259 employees for overtime and recordkeeping violations
  • An Ohio restaurant was ordered to pay $118,354 in back wages and damages to a total of 21 workers
  • A Pennsylvania printing company was required to pay $1.45 million in back wages and damages

Family and Medical Leave Act of 1993 (FMLA)

The FMLA is a labor law requiring covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for:

  • Pregnancy/ Birth of a child
  • Adoption
  • Foster Care placement of a child
  • Personal or family illness
  • Family military leave

The FMLA was introduced to balance the demands of the workplace with the needs of families. Should the FMLA be violated by an employer, workers can seek damages for lost wages and benefits, the cost of child care, plus an equal amount of liquidated damages unless an employer can show it acted in good faith and reasonable cause to believe it was not breaking the law.

Title VII of the Civil Rights Act of 1964

This federal law originally prohibited employers from discriminating against workers or applicants on the basis of sex, race, color, national origin and religion. Now protections for physical or mental disability, reprisal and sexual orientation have been included as well.

Employment Class Actions

Class actions brought on behalf of employees for wage and hour violations have been around for decades, but evidence is emerging hinting that these allegedly illegal practices by employers are becoming more prevalent than ever.  

U.S. federal law protects individuals from discrimination or harassment based on the following nine protected classes: sex, race, age, disability, color, creed, national origin, religion, or genetic information (added in 2008). Many state laws also give certain protected groups special protection against harassment and discrimination, as do many employer policies. Although it is not required by federal law, state law and employer policies may also protect employees from harassment or discrimination based on marital status or sexual orientation.  The following characteristics are “protected” by United States federal anti-discrimination law:

    Race – Civil Rights Act of 1964

    Religion – Civil Rights Act of 1964

    National origin – Civil Rights Act of 1964

    Age (40 and over) – Age Discrimination in Employment Act of 1967

    Sex – Equal Pay Act of 1963 and Civil Rights Act of 1964

    The Equal Employment Opportunity Commission interprets ‘sex’ to include discrimination based on sexual orientation and gender identity[2]

    Pregnancy – Pregnancy Discrimination Act

    Familial status – Civil Rights Act of 1968 Title VIII: Prohibits discrimination for having children, with an exception for senior housing. Also prohibits making a preference for those with children.

    Disability status – Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990

    Veteran status – Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act

    Genetic information – Genetic Information Nondiscrimination Act

Individual states can and do create other classes for protection under state law.

To prevent class-action lawsuits, here are some established guidelines for what you cannot do during the hiring and firing process on the basis of  membership in a protected class:

  • Refuse to hire an individual
  • Segregate or force someone to segregate
  • Deny training to an individual
  • Fire or layoff an individual

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

EEOC Settlement With Florida Hotel Is A Reminder To Be Careful In Implementing A Mass Termination Program

Posted on: August 1st, 2018

By: Jeremy Rogers

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach.  The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel.  They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian.  On the date of termination, each terminated employee was called into a meeting with the HR department and fired.  When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks.  Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos. The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino.  Articles about this case from when it was filed show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices.  This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be?  They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

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

Navigating New California Employment Laws

Posted on: February 1st, 2018

By: David Daniels

Are you and your clients doing business in California prepared for the new employment laws that take effect in 2018? If you represent employers in the state of California, these laws may very well affect the daily operations of their business. Unless specified, all new legislation outlined below went into effect on January 1, 2018.  As explained more fully below, I strongly encourage you to review your client’s employee handbooks and job applications to ensure compliance with the new 2018 employment statutes.

 

  • Stop asking about salary history –  AB 168 bars employers from asking job applicants about their previous salary. The legislation’s goal is to narrow the gender gap by preventing employers from basing offers on prior salary and thus, presumably, perpetuating historical discrimination. This will also remove the perceived gap in negotiating power between an employers and employees who must disclose their prior salary. Employers should ensure that their job applications don’t seek prohibited information and that those interviewing applicants know not to ask these questions.  I encourage all employers to review their written and/or on-line employment contracts to determine if the applicant is requested to state their salary history in the “Previous Experience” sections of the applications.  It is common practice to ask the applicant about their salary history in these sections of the application.  This practice must stop before January 1, 2018 in order to be compliant with California law.

 

  • More employers must offer parenting leave – SB 63, officially titled the Parental Leave Act, requires employers with between 20 and 49 employees to offer parenting leave that mirrors the Family Medical Leave Act. The new Act allows employees who work for a covered employer to take 12-weeks of unpaid, job-protected leave if they have worked a minimum of 1,250 hours in the 12-months prior to taking leave.  Employees can take leave only for the purpose of bonding with a newborn child, adopted child or foster child within a year of the birth or placement. Covered employers will also need to maintain health coverage under the same terms as an active employee. The Act also prohibits discrimination and retaliation against an employee for taking parental leave. The Parental Leave Act does not require employers to pay any portion of the leave but requires that employees be able to use accrued sick and vacation time. Employees can apply to have a portion of the parental leave paid for through the state’s Paid Family Leave program.  Please note that, San Francisco requires some employers to pay a remaining portion of parental leave.

 

  • Expanded harassment training – California requires at least biannual harassment training for supervisors in companies with 50 or more employees. Having given a dozen sessions of the  training in the last month, I can assure you that there’s no shortage of material to talk about. But as of January 1, 2018, SB 396 requires that the training include information on gender identity, gender expression, and sexual orientation. If your handbook doesn’t specifically prohibit discrimination and harassment on those bases, you’re overdue for a revision.

 

  • Ban the box – Following the leads of San Francisco and Los Angeles, AB 1008 prohibits employers with five or more employees from:
    • Asking on employment applications about criminal convictions;
    • Asking applicants about criminal convictions before making a conditional offer of employment;
    • When conducting background checks on applicants, considering, distributing, or disseminating information about prior arrests not leading to conviction, participation in diversion programs, or convictions that have been sealed, dismissed, expunged, or otherwise nullified.

 

Employers who wish to rely on criminal conviction information to withdraw a conditional job offer must notify the applicant of their preliminary decision, give them a copy of the report (if any), explain the applicants right to respond, give them at least five business days to do so, and then wait five more business days to decide when an applicant contests the decision. There are exceptions for employers who operate health facilities hiring employees who will have regular access to patients or drugs.

 

  • Minimum Wage Increases – On January 1, 2018, the California state minimum wage goes up to $11.00 per hour for businesses with 26 or more employees and $10.50 per hour for smaller companies.

 

  • Worksite Immigration Enforcement and Protections, AB 450 – The Immigrant Worker Protection Act shields workers from immigration enforcement while on the job. The legislation prohibits employers from providing federal immigration enforcement agents access to a business without a warrant and requires employers to notify employees of Form I-9 inspections performed by federal immigration enforcement officials.

 

  • Gender Identification: Female, Male or Nonbinary, SB 179 – This new law, which goes into effect on September 1, 2018, allows California residents to choose from three equally recognized gender options — female, male or nonbinary — on state-issued identification cards, birth certificates and driver’s licenses.

 

  • Employment Discrimination: Gender Neutral Language, AB 1556 – This law is a revision to California’s Fair Employment and Housing Act which deletes gender-specific personal pronouns in the state’s anti-discrimination, anti-harassment, pregnancy disability and family/ medical leave laws by changing “he” or “she,” for example, to “the person” or “the employee.”

 

  • LGBT Rights for Long-Term Care Facility Residents, SB 219 – Called the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights. The new law will strengthen anti-discrimination protections for LGBT individuals living in long-term care facilities, making it unlawful to willfully and repeatedly fail to use a resident’s preferred name or pronoun or to deny admission to a long-term care facility because of gender identity or sexual orientation. You must post a notice about the protections and follow recordkeeping requirements.

 

  • Human Trafficking, AB 260 – This new law extends the list of businesses that must post human trafficking information notices to include hotels, motels and bed and breakfast inns. In addition, SB 225 requires the human trafficking notice include a new number for those who wish to send text messages. Businesses are not required to post the updated notice until on or after January 1, 2019.

 

  • Anti-Discrimination Protections for Veterans, AB 1710 – This law will expand the current protections for members of the armed services. AB 1710 prohibits discrimination in all “terms, conditions, or privileges” of employment.

 

  • Health Facilities: Whistleblower Protections, AB 1102 – increases the maximum fine for a violation of whistleblower protections in healthcare facilities from $20,000 to $75,000.

 

  • Harassment Prevention Training: Farm Labor Contractors, SB 295
    This bill requires sexual harassment prevention training for each agricultural employee provided in the language understood by that employee in order to apply for or renew a license. The bill also requires an employer provide to the commissioner the total number of agricultural employees trained in sexual harassment prevention in the calendar year prior to the month the renewal application is submitted.

 

  • Labor Law Enforcement, Retaliation, SB 306 – This allows the Labor Commissioner to investigate an employer with or without a complaint from an employee as long as the Labor Commissioner suspects retaliation or discrimination against a worker.

 

  • Increased Liability for Construction Contractors, AB 1701 – This law pertains to private construction contracts entered into after January 1, 2018. It imposes liability onto the general contractor for any unpaid wages, benefits or contributions that a subcontractor owes to a laborer who performed work under the contract.

 

Please feel free to contact me at [email protected] should you wish to further discuss any of these new laws and/or how to best change your policies and practices to ensure compliance with California law.

Employer Notification to Disseminate Updated Sexual Harassment Brochure or Poster to California Employees

Posted on: December 11th, 2017

By: Elizabeth G. Fellmeth

On April 1, 2016, stronger discrimination and harassment regulations under the Fair Employment and Housing Act (“FEHA”) took effect. In addition to distributing California’s Department of Fair Employment and Housing (“DFEH”) brochure on sexual harassment (DFEH-185), the new regulations require employers to prepare and disseminate their own harassment, discrimination, and retaliation prevention policy.  A summary of the new FEHA regulations can be found here.  The DFEH also issued a workplace harassment guide for employers found here, which provides recommendations for implementing an effective anti-harassment program.

While employers may have spent the last year implementing the new regulations, the DFEH recently issued an updated DFEH-185 brochure replacing the earlier version (found here in English and here in Spanish).  The new brochure is also available in a printable poster format (found here in English and here in Spanish).

State law requires employers to disseminate the new information to their employees.  Employers can fulfil their obligations by providing new hire and current employees with a hardcopy or email copy of the updated brochure or new poster.  To ensure receipt of the brochure or poster, employers should include an acknowledgment form for employees to sign and return.

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