Protected Against Workplace Discrimination, Harassment

Beginning on January 1, 2014, California’s Fair Employment and Housing Act (FEHA) will protect an individual’s “military and veteran status” against employment discrimination and harassment.

This new FEHA provision defines military and veteran status as “a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.”

Administered by the California Department of Fair Employment and Housing (DFEH), FEHA also protects race, religious creed, color, national origin, ancestry, physical disability, mental disability, sex, sexual orientation, age (40 or over), and several other individual characteristics or life conditions from such workplace mistreatment. Employment discrimination laws are intended to ensure employers make personnel decisions on the basis of ability and performance and not on factors recognized as irrelevant to the conduct of business or management of personnel.

California’s regard for military and veteran status is distinct from the other protected classifications as FEHA specifically reserves the right of employers to ask applicants for any military service and to give preference to those who served or who have served in the military.

FEHA’s anti-discrimination provisions extend to any business regularly employing five or more persons FEHA’s anti-harassment provisions cover any business regularly employing one or more persons or receiving the services of one or more independent contractors.

For more information concerning an employer’s obligations under federal or California discrimination laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.

San Francisco Adopts a “Right to Request” Workplace Flexibility Ordinance (for employers with 20 or more on payroll)

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.

With political finger-pointing at a fever pitch, the federal government effected a partial operational shutdown on October 1, 2013. The closures continue into a second week with no end in sight. Several employment related agencies are affected.

The Department of Homeland Security (DHS) provides a free, web-based system (E-Verify) that permits employers to check a new hire’s Form I-9, Employment Eligibility Verification information against federal government databases to verify eligibility to work in the United States. With a few exceptions, employer use of the E-Verify system is optional.

E-Verify will not be available during the government shutdown. This however does not absolve employers from requiring each new hire to complete the Form I-9, Employment Eligibility Verification within three business days of employment to establish he or she is either an American citizen or authorized to work in the United States. See, our blog “New Employment Eligibility Verification Form I-9.”

When E-verify shows an inconsistency, the new hire is in “temporary nonconfirmation status” (TNC). DHS then requires the employer and subject employee to promptly take steps to establish the inconsistency is an error, i.e., the new hire is actually authorized to work in the U.S., or is actual evidence the worker is not authorized. While the E-Verify system is out of operation, all TNC status cases remain pending and employers may not take adverse action against any worker due to such TNC status (e.g., terminate the person for supposedly being unauthorized when eligibility has not been established one way or the other).

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws protecting employees and job applicants from racial, gender, and several other types of discrimination. The agency is closed during the shutdown, with limited services available. While the EEOC will examine new charges and continue to litigate lawsuits on a limited basis, it has cancelled scheduled mediations and will not be conducting investigations or processing Freedom of Information Act requests. It has also cancelled outreach and education events and will not have staff available to answer questions or respond to public initiated correspondence.

The Administrative Office of the United States Courts has announced that the federal courts will remain open through October 17 by use of fees and other revenue sources. This includes the federal courts’ electronic filing system. After October 17, the chief judge of each district court must decide which employees and services are “essential” to the court’s constitutional duty to hear and decide cases. By law, “essential” employees continue to work during a lapse in government spending and “non-essential” workers are laid off.

Contact us or call one of our attorneys, Tim Bowles or Cindy Bamforth for further guidance.

No Immediate Consequences for Late Notice But Businesses Should Still Comply Promptly

The October 1, 2013 Notice Deadline: The federal Patient Protection and Affordable Care Act (ACA or “Obamacare”) requires the state-by-state creation of the so-called “Health Insurance Marketplace” (“Marketplace” for short, also called the “Exchange”), a virtual one-stop shopping mall for access to private coverage. California’s exchange is “Covered California”: http://www.coveredca.com/. Each state exchange started offering such insurance options on October 1, 2013.

Also by October 1, all employers subject to another federal law –the Fair Labor Standards Act (FLSA) – were to give each of its workers a written notice of the existence of the Health Insurance Marketplace. The FLSA generally kicks in for companies grossing $500,000 or more annually and which are engaged in interstate commerce. “Interstate commerce” is a very broad term. A local farmer selling at the local Saturday market may not be considered engaging in interstate commerce. A local market selling goods originating from other states definitely is. The U.S. Department of Labor offers an online self-assessment for companies to determine if they are subject to the FLSA: http://www.dol.gov/elaws/esa/flsa/scope/screen24.asp.

No Penalty Currently for Employers Who Missed that October 1 Date: While no business is comfortable missing a deadline, the U.S. Department of Labor has confirmed there are no penalties or fines for having missed this October 1, 2013 ACA notice date. See, http://www.dol.gov/ebsa/faqs/faq-noticeofcoverageoptions.html. Thus, while the notification is a legal requirement, it is in effect optional. However, since this optional status could be temporary, employers covered by the FLSA who have yet to comply should arrange to issue these notices as soon as possible.

Content of the ACA Notice: This required, yet optional, written notice must include three points: 1) inform the employee of the existence of the Marketplace/Exchange, including a description of its services and how the employee may contact the Marketplace for assistance; 2) describe how the employee may be eligible for a premium tax credit if he/she purchases a qualified health plan through the Marketplace; and 3) inform the employee that if he/she purchases a qualified health plan through the Marketplace, he/she may lose the employer contribution (if any) to any health benefits plan the employer offers as well as lose certain federal tax advantages.

The U.S. Department of Labor has published two templates for such notice, one for FLSA-covered employers who do not have a current health plan for their workers (see, http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf), the other for such employers who do offer such a plan for some or all of their workers (see, http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf).

For more information concerning employer’s obligations in this area, contact one of our attorneys Tim Bowles or Cindy Bamforth.

With political finger-pointing at a fever pitch, the federal government effected a partial operational shutdown on October 1, 2013. The closures continue into a second week with no end in sight. Several employment related agencies are affected.

The Department of Homeland Security (DHS) provides a free, web-based system (E-Verify) that permits employers to check a new hire’s Form I-9, Employment Eligibility Verification information against federal government databases to verify eligibility to work in the United States. With a few exceptions, employer use of the E-Verify system is optional.

E-Verify will not be available during the government shutdown. This however does not absolve employers from requiring each new hire to complete the Form I-9, Employment Eligibility Verification within three business days of employment to establish he or she is either an American citizen or authorized to work in the United States. See, our blog “New Employment Eligibility Verification Form I-9.”

When E-verify shows an inconsistency, the new hire is in “temporary nonconfirmation status” (TNC). DHS then requires the employer and subject employee to promptly take steps to establish the inconsistency is an error, i.e., the new hire is actually authorized to work in the U.S., or is actual evidence the worker is not authorized. While the E-Verify system is out of operation, all TNC status cases remain pending and employers may not take adverse action against any worker due to such TNC status (e.g., terminate the person for supposedly being unauthorized when eligibility has not been established one way or the other).

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws protecting employees and job applicants from racial, gender, and several other types of discrimination. The agency is closed during the shutdown, with limited services available. While the EEOC will examine new charges and continue to litigate lawsuits on a limited basis, it has cancelled scheduled mediations and will not be conducting investigations or processing Freedom of Information Act requests. It has also cancelled outreach and education events and will not have staff available to answer questions or respond to public initiated correspondence.

The Administrative Office of the United States Courts has announced that the federal courts will remain open through October 17 by use of fees and other revenue sources. This includes the federal courts’ electronic filing system. After October 17, the chief judge of each district court must decide which employees and services are “essential” to the court’s constitutional duty to hear and decide cases. By law, “essential” employees continue to work during a lapse in government spending and “non-essential” workers are laid off.

Contact us or call one of our attorneys, Tim Bowles or Cindy Bamforth for further guidance.

No Immediate Consequences for Late Notice But Businesses Should Still Comply Promptly

The October 1, 2013 Notice Deadline: The federal Patient Protection and Affordable Care Act (ACA or “Obamacare”) requires the state-by-state creation of the so-called “Health Insurance Marketplace” (“Marketplace” for short, also called the “Exchange”), a virtual one-stop shopping mall for access to private coverage. California’s exchange is “Covered California”: http://www.coveredca.com/. Each state exchange started offering such insurance options on October 1, 2013.

Also by October 1, all employers subject to another federal law –the Fair Labor Standards Act (FLSA) – were to give each of its workers a written notice of the existence of the Health Insurance Marketplace. The FLSA generally kicks in for companies grossing $500,000 or more annually and which are engaged in interstate commerce. “Interstate commerce” is a very broad term. A local farmer selling at the local Saturday market may not be considered engaging in interstate commerce. A local market selling goods originating from other states definitely is. The U.S. Department of Labor offers an online self-assessment for companies to determine if they are subject to the FLSA: http://www.dol.gov/elaws/esa/flsa/scope/screen24.asp.

No Penalty Currently for Employers Who Missed that October 1 Date: While no business is comfortable missing a deadline, the U.S. Department of Labor has confirmed there are no penalties or fines for having missed this October 1, 2013 ACA notice date. See, http://www.dol.gov/ebsa/faqs/faq-noticeofcoverageoptions.html. Thus, while the notification is a legal requirement, it is in effect optional. However, since this optional status could be temporary, employers covered by the FLSA who have yet to comply should arrange to issue these notices as soon as possible.

Content of the ACA Notice: This required, yet optional, written notice must include three points: 1) inform the employee of the existence of the Marketplace/Exchange, including a description of its services and how the employee may contact the Marketplace for assistance; 2) describe how the employee may be eligible for a premium tax credit if he/she purchases a qualified health plan through the Marketplace; and 3) inform the employee that if he/she purchases a qualified health plan through the Marketplace, he/she may lose the employer contribution (if any) to any health benefits plan the employer offers as well as lose certain federal tax advantages.

The U.S. Department of Labor has published two templates for such notice, one for FLSA-covered employers who do not have a current health plan for their workers (see, http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf), the other for such employers who do offer such a plan for some or all of their workers (see, http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf).

For more information concerning employer’s obligations in this area, contact one of our attorneys Tim Bowles or Cindy Bamforth.

City Settlement of Suit over Former San Diego Mayor Filner’s Conduct is a Case in Point

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.

City Settlement of Suit over Former San Diego Mayor Filner’s Conduct is a Case in Point

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.

Some Volunteers May be Covered

The California Court of Appeal has decided that the state’s workplace anti-discrimination law did not protect a former Los Angeles Police Department volunteer police reserve officer. Estrada v. City of Los Angeles, published July 24, 2013. However, the result would likely be the opposite for a private business in similar circumstances.

Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD and although he specifically served without compensation, asserted that he should be considered an “employee” under the California Fair Employment and Housing Act (FEHA) since the City of Los Angeles paid to cover him for workers’ compensation insurance. Mr. Estrada alleged the City of Los Angeles discriminated against him in violation of FEHA due to his physical disability.

If a California business has five or more employees, FEHA protects against any such worker’s termination due to race, national origin, gender, religion, physical or mental disability or any other classification protected from discrimination by that law.

The FEHA statute specifies that “employees” are entitled to such protections but does not actually define what that word means. Mr. Estrada, although termed under city rules a “volunteer” for his work with LAPD, asserted that he should be considered a FEHA “employee” since the City of Los Angeles paid to cover him for workers’ compensation insurance.

Mr. Estrada had a seemingly strong legal position from prior published California appeals court decisions. Those cases observed that where an employer chooses to cover a volunteer under workers’ compensation, FEHA protections should extend to that person as well.

However, the court concluded that the City of Los Angeles had a countervailing special right, granted by the California Constitution, to regulate and control its internal affairs, including its role as an employer. The city’s rules designated persons appointed to the police reserve as “volunteer workers only and … not deemed … employees of the City …” except for workers’ compensation benefits. The court concluded it could not interfere with the city’s power to define “employee” and “volunteer” in any manner it chose.

Thus, Mr. Estrada only lost his case due to special constitutional rights of “charter cities,” including Los Angeles, as governmental bodies. On the other hand, the decision indicates that a private business with five or more persons on payroll and which chooses to cover its “volunteers” for workers compensation will also be obligated to comply with FEHA for those persons as well.

This Estrada decision is also a reminder to private businesses to ensure they are only classifying those individuals as volunteers who are truly providing some service or assistance without contemplation or receipt of remuneration. A court or agency may well conclude that a person labeled “volunteer” is actually an employee if he/she is actually obtaining or expecting to obtain material benefits from the work. The Estrada Court observed: “Even substantial indirect compensation can satisfy the threshold requirement of remuneration for purposes of employee status under [the anti-discrimination law]. If not direct salary, substantial benefits which are not merely incidental to the activity performed, such as health insurance, vacation or sick pay, are indicia of employment status.” (Emphasis in original.)

For more perspective and help on the distinction between employees and volunteers or on FEHA’s application to California employers, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.