State Reveals Its Template for Notice to All Newly Hired Employees
Balancing Worker Privacy with an Employer’s Rights to Protect Safety
Despite staffing cuts, hiring freezes and sequestration woes, the U.S. Equal Employment Opportunity Commission (EEOC) recovered a record $372.1 million for its private sector workplace discrimination charges — $6.7 million more than it recovered the year prior.
The EEOC enforces federal anti-discrimination in employment laws. According to the EEOC’s Fiscal Year 2013 Performance and Accountability Report (PAR), the EEOC received a 93,727 private sector discrimination charges. Although some 6,000 less than the prior three years, it still ranks among the agency’s top five.
The EEOC has continued to focus on systemic enforcement, targeting unlawful patterns, practices or policies which broadly impact an industry, profession, company or geographic area. Systemic practices include discriminatory barriers in recruitment and hiring; discriminatory restricted access to management training programs and to high level jobs; exclusion of qualified women from traditionally male dominated fields of work; unlawful pre-employment inquiries aimed at detecting disabilities; and age discrimination by reductions in a workforce.
The EEOC reports 300 systemic investigations in fiscal 2013 resulting in 63 settlements or conciliation agreements totaling some $40 million. Agency lawsuits filed for systemic enforcement represented over 20 percent of all active suits in that 2013, the largest proportion since tracking started in 2006. The EEOC also obtained more than $160.9 million in monetary benefits for complaining employees through mediation resolutions, the second highest level in the agency’s history.
If you as employer don’t wish to contribute to any further groundbreaking statistics, we can help. For more information concerning California or federal employment laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.
As relayed in our August 30, 2013 blog, San Diego Mayor Bob Filner left office in disgrace last summer on the heels of multiple allegations of sexual harassment.
In damning defense, Mr. Filner claimed the City never provided him sexual harassment training. This prompted the California Department of Fair Employment and Housing (DFEH) to charge the City with violations of the Fair Employment and Housing Act (FEHA) requirement to provide such training to its supervisory employees, including elected and appointed officials.
Without admitting liability, the City settled the DFEH claim for a reported $250,000 and on its pledge to provide at least two hours of sexual harassment prevention training to all supervisory employees within six months of hire, election or appointment date, and every two years thereafter. The City also agreed to report compliance to DFEH every six months for the next five years.
DFEH Director Phyllis Cheng announced, “This agreement serves as a model for other local government agencies to fully comply with the sexual harassment training required of all supervisors, including elected and appointed officials under the Fair Employment and Housing Act.”
Private employers should also take heed. California Government Code section 12940(k) requires employers, no matter how many they employ, to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” FEHA also requires California companies with 50 or more employees to provide the same harassment training to its supervisors and executives that the City of San Diego was cited for ignoring.
Failure of a covered employer to comply with those harassment training mandates could be used as evidence of that employer’s failure to take all reasonable prevention steps.
On January 1, 2014, San Francisco enacted a “right to request” ordinance which gives certain employees working in the City the right to seek flexible work arrangements to address family needs. The City has since amended the law to apply to employers with 20 or more employees anywhere.
The ordinance permits workers employed within the city limits for at least six months and eight hours per week to request scheduling accommodation to assist with caregiving responsibilities for: (i) children under the age of 18; (ii) family members with a serious health condition; or (iii) parents age 65 or older.
The employer must meet with the requesting employee within 21 days and respond within 21 days of that meeting. If the employer denies the request, it must explain to the worker in writing the business reasons for the decision as well as specify that employee’s rights to request reconsideration. Legitimate reasons for a denial include the cost of the proposed change, the detrimental effect on customer/client demands, inability to organize work among other employees, or lack of available work during the proposed work time.
The ordinance also makes it unlawful for an employer to “discharge, threaten to discharge, demote, suspend, or otherwise take adverse employment action against any person on the basis of caregiver status, in retaliation for exercising rights protected under the Ordinance, or for cooperating with the City in enforcement.”
Employers with work sites in San Francisco need to post the ordinance’s official notice and should consider modifying their applicable employment policies.
While employers are barred by federal law from knowingly employing unauthorized immigrants, companies are also barred from treating any immigrant unfairly, whether or not authorized to work in the U.S. New California laws for 2014 provide the strongest anti-retaliation protections for immigrant workers in the country. This legislation penalizes employers who threaten to report immigration status of an employee in retaliation for his/her exercising rights to complain over workplace conditions:
Employers should of course ensure their required I-9 procedures are in place. These new laws establish that businesses are prohibited from attempting to “leverage” any immigration or citizenship status to thwart a worker from complaining about wages or other workplace practices or conditions or to punish an employee for having done so. Worker complaints over such practices or conditions should be fielded and resolved thoroughly and professionally. Employers should ensure supervisors refrain from making any threats to use a worker’s immigration status against him or her.
For more information concerning an employer’s obligations under California or federal employment laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.