EEOC’s Recent Hearing on Out-of-Work Job Applicants

In Being Unemployed Just Got Harder (February 16, 2011), we reported the U.S. Equal Employment Opportunity Commission’s (EEOC) impending hearing on a possible national trend of hiring only those currently employed — a choice certainly not likely to help the country’s unemployment challenges.

In a post-hearing statement, EEOC Chair Jacqueline A. Berrien stated, “Today’s meeting gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.”

According to Helen Norton, University of Colorado School of Law, employers and staffing agencies have publicly advertised jobs in fields including electronic engineering, food service management, and real property financing with the explicit restriction that only currently employed candidates will be considered.

Assistant Secretary of Labor for Policy William Spriggs presented national employment statistics indicating that minorities, particularly African Americans and Hispanics, represent the majority of those who are unemployed. Several other panelists claimed that using current employment as a selection criteria adversely impacts women, minorities, and individuals with disabilities, and called for EEOC guidance and enforcement to address the issue.

However, others testified that actual discrimination against the unemployed is rare. Fernan R. Cepero of the Society for Human Resource Management (SHRM) claimed his organization “is unaware of a widespread practice or trend to exclude unemployed individuals from consideration for available jobs.” Cepero concluded, “Employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed.”

While the EEOC has yet to offer any regulation as a result of the hearing, the agency clearly sees any such hiring practices in a negative light.

A full list of panelists and their testimony is available online.

California Appeals Decision Confirms Salary Agreements for Hourly Employees That Foreclose Overtime Claims

A February 7, 2011 California Court of Appeal decision permits explicit written salary wage agreements for hourly workers that include overtime compensation within that set weekly amount.

In Arechiga v. Dolores Press, a former employee sued for alleged unpaid overtime. Working as a janitor, Arechiga had verbally agreed to work 11 hours a day, six days a week (a total of 66 hours per week). Thus, he asserted the company owed him overtime for the 26 hours he worked over the 40 hour/week threshold for regular pay.

However, Arechiga also entered a written agreement with the company stating he would be paid a weekly salary of $880 for his labor. The court held that California law (Labor Code section 515) does not outlaw “explicit mutual wage agreements” in which an hourly employee such as Arechiga and the employer establish a set salary that will include basic wage and overtime pay and in which the overtime component is at least one and one-half times the basic rate.

As Arechiga had a set schedule, the court found that the parties had intended to divide his $880 weekly compensation to cover all those hours, including $445.60 to cover the 40 hours of regular time (at $11.14/hour) and $434.46 to cover the 26 hours of overtime (at $16.71/hour).

The decision confirms that employers and hourly employees may negotiate for written “explicit” set salary agreements to cover work schedules that would render the worker eligible for overtime.

As the Arechiga decision carries several fine points, California businesses should proceed deliberately and with the aid of knowledgeable legal counsel in creating and entering such written agreements with any hourly worker. The risk of an inadequate agreement could be liability for additional overtime compensation that could reach back for up to four years of payroll.

Avoid the Employment Discrimination Gallows

As religious diversity in the American workplace increases, so does the importance of management’s understanding how to address conflicts that arise. The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the federal law prohibiting discrimination in commerce has recently published a guide to help employers with the task (“Questions and Answers: Religious Discrimination in the Workplace,” January 31, 2011).

That federal law (Civil Rights Act of 1964, nicknamed “Title VII”) prohibits:

• Treating applicants or employees differently based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (called “disparate treatment”);

• Subjecting employees to hostility, insults, or other harassment because of their religious beliefs or practices – or lack thereof – or because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.);

• Failing to seek and work out a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices if an accommodation will not impose more than a minimal cost or burden on business operations or finance; and

• Retaliating against an applicant or employee because he or she has engaged in protected activity, including the filing or voicing of a complaint over perceived religious discrimination or harassment.

The EEOC article also explains how that agency defines “religion,” specifies exceptions to Title VII’s religious provisions, and illustrates what is meant by “religious harassment” as well as some common ways to accommodate religious beliefs in the workplace.

We have also published a recent article on the subject, “Avoiding Religious Discrimination in the Workplace,” Bowles Law Report, Vol. 9, Issue 4.

If you have questions in the area, please let us know.

No Free Ride for Employers Who Ignore the Rules

With an economy continuing to sputter, a company may be more keen to take on unpaid summer interns to share the workload. Yet, if a business fails to fulfill detailed laws and regulations for such training programs, this supposed “cost-cutting” measure could become an expensive litigation nightmare. Boiled down, internship programs must predominately be for the benefit of the participants rather than a profit-yielding venture for the sponsoring company.

Our January 7, 2011 article “Employer’s Guide to New 2011 Laws, Part III” addressed new Division of Labor Standards Enforcement (DLSE) guidelines for unpaid internship programs. Among the key provisions, interns may be exempt from minimum wage laws only if:

1) The intern’s training actions are similar to those of a vocational school student;

2) The training is for the benefit of the trainee;

3) The trainee does not displace regular employees, but works under close observation;

4) The company derives no immediate advantage from the activities of the trainee and on occasion its operations may actually be impeded;

5) The trainee is not necessarily entitled to a job at the completion of the training period; and

6) The employer and the trainee understand that the trainee is not entitled to wages for the time spent in training.

The DLSE directs that if a company’s intern program does not meet all of these conditions for any individual, that person is an employee subject to state and federal wage and hour laws.

For assistance in setting up a lawful, written summer internship program for your business and accompanying forms for participants, contact a knowledgeable labor law attorney.

IRS Increases Acceptable Mileage Rate Deduction

Effective January 1, 2011, the IRS increased the accepted mileage deduction for business use of a motor vehicle from 50 cents to 51 cents per mile. Employers may deduct as a business expense the full amount of any reimbursement equal to or less than this IRS rate. However, the IRS considers reimbursement amounts in excess of the 51-cent limit “wages” that are subject to taxation.

Those who are self-employed can deduct their business miles using the standard mileage rate or by calculating actual costs. To use the standard mileage rate, it must be applied in the first year the vehicle is used for business.

There are other, lower rates for medical, moving and charitable transportation.

For example, injured California workers receiving workers’ compensation benefits can also use the IRS-prescribed 19 cent/mile rate when requesting reimbursement for miles driven to and from medical appointments, pharmacies and any other locations related to diagnosis and treatment of the job-related injury.

For further details on the rules, an employer should consult a tax lawyer or accountant. Of course, business owners planning to change their companies’ reimbursement rate should be sure to notify their employees.

The Effect of California Anti-Trafficking Law on Business

An estimated 12 million people are enslaved worldwide, 50,000 in the United States every year. By far, more individuals are trafficked and made slaves today than at any time when the practice was “legal.”

The State of California has responded with the recent passage of Senate Bill 657, the “California Transparency in Supply Chains Act of 2010.” The law takes effect January 1, 2011. It will require California retailers and manufacturers to disclose their efforts to eradicate slavery from their supply chain. The law targets agriculture, mining, garment and other industries in which slave labor is most common.

In announcing the new law, Governor Schwarzenegger stated: “Human trafficking is a terrible crime that goes against basic human rights and everything our country stands for. I am proud that in California, we have enacted some of the toughest laws to punish human traffickers and protect their victims. This legislation will increase transparency, allow consumers to make better, more informed choices and motivate businesses to ensure humane practices through the supply chain.”

For more information about the law and the facts on human trafficking in California, visit Coalition to Abolish Slavery & Trafficking (CAST). CAST was a co-sponsor of the bill.

(Photo by One Eleven Photography)

Youth for Human Rights International

& United for Human Rights present

Education and Human Rights Awareness, In Combat of 21^st Century Slave Trade

Special Guests:

Rohida Khan, Victim Assistance Coordinator, Department of Homeland Security

Brad Dacus, Esq. President of Pacific Justice Institute

Church of Scientology of Pasadena Chapel

35 South Raymond Ave., Pasadena, California

Brunch with presentations and panels to follow

Saturday, December 11, 2010

9:30 to Noon

Please RSVP by email or by calling 626.583.6600 (Law Offices of Timothy Bowles)

Copyright © 2010 by United for Human Rights. All rights reserved.

New California Workers’ Compensation Posting and Pamphlet Requirement

Deadline: October 8, 2010

All California employers must post a new workers’ compensation notice and must distribute a new workers’ compensation benefits pamphlet to new hires by October 8, 2010.

California’s Division of Workers’ Compensation (DWC) has recently enacted regulations that require employers within California to post a new poster entitled “Notice to Employees – Injuries Caused by Work.” This updated notice is available on the DWC website.

The new poster must be placed in a conspicuous location frequented by employees. Failure to post the notice by the October 8 deadline can result in up to $7,000 in civil penalties.

All California employers must also distribute a new pamphlet entitled “Your Rights to Workers’ Compensation Benefits” to all new employees who commence work on or after October 8, 2010. Such employees must receive this pamphlet either at time of hire or before the end of their first pay period. Please visit the California Chamber of Commerce Online Store to purchase a stack of these pamphlets.

All California employers within an existing Medical Provider Network (MPN) must create and post a special MPN Notice and distribute copies to any employee injured on the job on or after October 8, 2010. (A “Medical Provider Network” is comprised of doctors, hospitals or other medical providers who contract directly with the employer to treat its workers injured on the job).

DWC also updated the workers’ compensation claim form (DWC-1), effective as of October 8, 2010. Please use the updated form available at http://www.dir.ca.gov/dwc/forms/ClaimForm2010.pdf for all workers’ compensation claims on or after October 8, 2010.

If you have any questions, please call or email me or any of our other employment law attorneys. Best, Cindy Bamforth

New Workers’ Compensation Regulations in California

As we kick off the new year, employers confront a slew of new laws and regulations that may affect operations and require revisions in workplace policy manuals and/or new notice postings. This is the first in a series of articles intended to help navigate key California and federal changes in employment legal standards.

California’s workers’ compensation laws were amended on October 8, 2010. Violations of the new rules can incur a fine of up to $7,000 per occurrence. Every California employer must:

• Post the new “Notice to Employees—Injuries Caused by Work” poster (DWC 7);
• Distribute the updated “Your Rights to Workers’ Compensation Benefits” pamphlets to any new employees; and
• Use the revised “Workers’ Compensation Claim Form (DWC 1) and Notice of Potential Eligibility” form.

The new rules include a host of notice requirements for employers utilizing Medical Provider Networks (MPNs), healthcare providers providing treatment for work-related injuries. The changes include:

• Implementation Notices – Employers who offer a MPN plan must provide a written “implementation notice” to all employees covered;
• Written MPN Employee Notifications – Employers are required to provide a written “MPN Employee Notification” to a covered employee at the time of injury or at the outset of treatment for a work-related injury;
• Notices for MPN Coverage Change, Termination, or Cessation of Use – Employers are required to provide another written notice to any covered injured employee on the date of any change, termination or cessation of MPN coverage; and
• Independent Medical Review Notices – If at any time a physician is asked to provide a third opinion, employers must notify the injured employee about the independent medical review process.

If you have any questions about how to implement these workers’ compensation changes, please contact us.