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The U.S. Supreme Court ruling inMuldrow v. St. Louishas opened employers to discrimination charges for "lateral transfers" (moves from one part of operations to another) even without significant harm to the employee.
The U.S. Supreme Court ruling in Muldrow v. St. Louis has opened employers to discrimination charges for "lateral transfers" (moves from one part of operations to another) even without significant harm to the employee.
A new head of the St. Louis Police Department's Intelligence Division transferred a plainclothes female sergeant with an outstanding record and years of experience to a uniformed job supervising patrol officers so he could install a male replacement. The transferred officer lost no wages or rank. Nevertheless, she sued the City for sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) because the new position took away the prestigious responsibilities, schedule, and perks of the prior position.
The trial court and Court of Appeals upheld her transfer, finding it did not produce a "materially significant disadvantage." The U.S. Supreme Court disagreed. It ruled that Title VII has no requirement that an action affecting the terms and conditions of employment, taken for a prohibited reason, such as gender, have a "significant" effect. It therefore reversed the lower court rulings, giving employers a guide to what kind of transfers are discriminatory:
"The transfer must have left her worse off, but need not have left her significantly so. And [the sergeant's] allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district's patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought . . . that her rank and pay remained the same, or that she still could advance to other jobs."
This ruling is a caution to all employers to avoid transferring employees to a new position against their will if the employee will be "worse off." They should apply the same consideration when re-assigning an employee returning from a protected leave, such as California's Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA).
Take-Aways:
To avoid a charge of discrimination, employers should scrutinize any planned lateral transfers that an employee opposes to ensure the person will not be worse off.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
May 10, 2024
The California Civil Rights Department (CRD) has obtained a $51,000 settlement from Octapharma Plasma for allegedly rescinding a job offer based on criminal history without considering significant mitigating factors and evidence of rehabilitation.
The California Civil Rights Department (CRD) has obtained a $51,000 settlement from Octapharma Plasma for allegedly rescinding a job offer based on criminal history without considering significant mitigating factors and evidence of rehabilitation.
Under the Fair Chance Act, a covered employer may not consider criminal history information until after it extends a conditional job offer. Job applications and advertisements must not include criminal history inquiries or rule out persons with criminal histories. For example, blanket statements such as "must have clean record" violate the law's protection. Upon learning of a potentially disqualifying criminal record post-offer, the employer must allow the applicant to explain mitigating circumstances, such as the date and type of offense and whether it has any direct, adverse relationship to the job position.
CRD Director Kevin Kish stated: "The Fair Chance Act is about giving every Californian an opportunity to succeed. The law helps qualified candidates to retake control of their lives, give back to their communities, and reintegrate into society. Through this settlement, Octapharma Plasma is doing the right thing for its workers and for the people of our state."
Octapharma Plasma has also agreed to modify its hiring policies, train hiring managers on the Fair Chance Act's requirements, and report detailed information to CRD for three years whenever revoking or denying an applicant's conditional offer due to the individual's criminal history.
Take-Aways:
Covered employers need to correctly implement the Fair Chance Act's requirements into their hiring practices.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
May 9, 2024
Californiaandfederal lawdirect employers of any size to provide leave to a worker called up to the reserves or National Guard and to hire the person back for up to five years of such ensuing service.
California and federal law direct employers of any size to provide leave to a worker called up to the reserves or National Guard and to hire the person back for up to five years of such ensuing service.
An employee must request such leave on receiving orders to report for duty, submitting the orders as support. Such leaves are generally unpaid, and employees will not accrue vacation, insurance, and other benefits while on military leave, unless applicable law so requires.
Policy Drafting Tip:
Take-Aways:
Implement and regularly review your handbook to include all applicable military leave policies, and educate and train your supervisors on these laws.
We publish this series to educate employers on best practices for a well-written handbook that assists applicants, employees, and management alike. To purchase our 2024 template handbook - which contains the above policy and much more - and accompanying forms or for additional information, please contact Office Manager Aimee Rosales at 626.583.6600 or officemgr@tbowleslaw.com.
See also:
Helena Kobrin
April 26, 2024
UnderCalifornia law, every business with 100 or more employees and/or 100 or more people hired through labor contractors -and with at least one in California-- mustannuallyreport to the Civil Rights Department (CRD) detailed worker data including job category, sex, race/ethnicity, pay and hours worked (the pay data report). This year's filing deadline isMay 8, 2024).
Under California law, every business with 100 or more employees and/or 100 or more people hired through labor contractors - and with at least one in California -- must annually report to the Civil Rights Department (CRD) detailed worker data including job category, sex, race/ethnicity, pay and hours worked (the pay data report). This year's filing deadline is May 8, 2024).
On March 12, 2024, the CRD released prior report findings showing gender pay gaps in every major industry, particularly for women of color. For example:
CRD Director Kevin Kish stated: "Pay discrimination is real, it is persistent, and it happens right here in California. The new few findings we're sharing today make it clear that there is a long road ahead of us for true pay equity in our state. Whether it's through clearly identifying the challenge, taking direct legal action, or encouraging employers to step up the plate, it's going to take all of us working together to make a difference."
Take-Aways:
All employers should routinely assess job advertising, interviewing, pay scales and other hiring and retention practices to prevent or correct unlawful pay disparities and ensure equal employment under applicable federal and state laws including California's Fair Pay Act and Fair Employment and Housing Act (FEHA).
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
April 18, 2024
BaronHR, LLC, a national staffing agency,will pay $2.2 million to settle claimsit discriminated against low-wage, low-skill job applicants on the basis of race, gender, and disability in violation ofTitle VII of the Civil Rights Act of 1964and theAmericans with Disabilities Act.
BaronHR, LLC, a national staffing agency, will pay $2.2 million to settle claims it discriminated against low-wage, low-skill job applicants on the basis of race, gender, and disability in violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
While Baron has also agreed to change its employment policies and practices to prevent future discrimination, its imminent shut down moots that pledge unless the company resumes business.
Los Angeles regional EEOC attorney Anna Park stated: "Hiring discrimination remains a persistent problem in low-skill, low-wage industries. Employers need to take their responsibilities seriously to ensure all applicants receive employment opportunities regardless of race, national origin, sex, or disability."
Take-Aways: Staffing companies can provide temporary workers as well as payroll and HR functions such as screening and onboarding. Yet, labor claims against an agency expose the businesses utilizing its workers to liability as joint employers. The BaronHR example underscores the importance of due diligence in choosing such a provider.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
April 12, 2024
The California Labor Commissioner's Office has obtained a $2 million settlement from Fresno-based restaurant Pearl B-Star, Inc. dba Lin's Fusion for wages allegedly owed to 32 restaurant employees.
The California Labor Commissioner's Office has obtained a $2 million settlement from Fresno-based restaurant Pearl B-Star, Inc. dba Lin's Fusion for wages allegedly owed to 32 restaurant employees.
The commissioner's Bureau of Field Enforcement (BOFE) found that workers, many of them immigrants, received wages in cash and were not compensated for overtime, split shifts, meal periods, and contract wages.
The Employment Development Department (EDD) and the Joint Enforcement Strike Force (JESF) also participated in the investigation.
Labor Commissioner Lilia Garcia-Brower stated: "When enforcement agencies work together, we are best able to protect workers. In this case systemic violations were detected, the perpetrating employer was held accountable, and workers are receiving owed wages. We look forward to continuing to collaborate on many cases to protect workers and law-abiding employers."
Take-Aways: It is vital to comply with all applicable wage-related laws regardless of immigration status. Our firm can conduct friendly reviews of company wage, hour and documentation practices before any government agency comes knocking with real or imagined employee grievances and millions in potential damages.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
April 10, 2024
Under the January 1, 2024 version of California's employer-provided paid sick leaveHealthy Workplaces, Healthy Families Act of 2014(Act), employers may opt to provide the benefit either in an up-front lump sum for eligible employees to use during the 12-month eligibility year (the "advance method") or via accrual over time (the "accrual method").
Under the January 1, 2024 version of California's employer-provided paid sick leave Healthy Workplaces, Healthy Families Act of 2014 (Act), employers may opt to provide the benefit either in an up-front lump sum for eligible employees to use during the 12-month eligibility year (the "advance method") or via accrual over time (the "accrual method").
Under the accrual method, the updated Act requires employers to either have eligible employees accrue one hour of paid sick leave for every 30 hours worked (the "1:30 statutory accrual method") or use another regularly recurring accrual method, such as per pay period, so long as employees accrue at least 24 hours by the 120th day of the 12-month period and no less than 40 hours by the 200th calendar day (the "optional accrual method").
Until recently, employers were uncertain whether they were permitted to follow the 1:30 accrual for part-time employees who did not accrue at least 24 hours by their 120th day of employment or 40 hours by their 200th day.
The Labor Commissioner's recently-updated FAQs resolve this ambiguity.
FAQ No. 12 clarifies:
"Although employers may adopt or keep other types of accrual schedules (other than 1:30), the schedule must result in an employee having at least 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment and 40 hours by the 200th calendar day of employment. If an employer is using the 1 hour of paid sick leave accrued for 30 hours worked or something more generous (e.g. 1 hour accrued of paid sick leave for every 20 hours worked), then the employer does not have to provide 24 hours or 3 days by the 120th day of the year and 40 hours or 5 days by the 200th day." (emphasis added)
Take-Aways:
California employers using the accrual method should use the 1:30 accrual rate for their part-time employees. Otherwise, part-timers must accrue at least 24 hours by their 120th day of employment or 40 hours by their 200th day.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
March 29, 2024
We, however, suggest management not leave it to the gods (understatement). Prevention being nine-tenths of the law, if not more, best practice is a regular, thorough audit of company wage, hour and documentation practices before any class action attorney comes knocking with real or imagined employee grievances and millions in potential damages.
We, however, suggest management not leave it to the gods (understatement). Prevention being nine-tenths of the law, if not more, best practice is a regular, thorough audit of company wage, hour and documentation practices before any class action attorney comes knocking with real or imagined employee grievances and millions in potential damages.
Having represented our fair share of businesses that had to confront - and pay many thousands to defend -- their workplace practices in a lawsuit, our lawyers bring a practiced eye for review of wage and hour policies and protocols for compliance with California's unforgiving labor laws.
Contact Office Manager, Aimee Rosales, for more information and to set an appointment. Phone: 626.583.6600, email: officemanager@tbowleslaw.com.
See also:
March 29, 2024
Aspreviously reported, effective July 1, 2024, most California employers must implement and maintain an effective workplace violence prevention plan (the Plan); training materials; and a violence incident log.
As previously reported, effective July 1, 2024, most California employers must implement and maintain an effective workplace violence prevention plan (the Plan); training materials; and a violence incident log.
The law does not apply to ● employees teleworking from a location of their choosing and control; ● health care facilities covered under Cal/OSHA's Violence Prevention in Health Care regulation; ● law enforcement agencies; correctional facilities; and ● locations not accessible to the public where less than 10 employees work at any given time.
To assist covered employers, the California Division of Occupational Safety and Health (Cal/OSHA) has released a model workplace violence prevention plan.
That model plan addresses the key topics:
Cal/OSHA has issued an employer fact sheet regarding mandatory plans, violent incident logs, effective training programs, and recordkeeping requirements.
That agency has also published several other workplace violence prevention guidelines and fact sheets, including for agricultural operations.
Take-Aways:
Covered employers must adopt a legally complaint, comprehensive workplace violence prevention plan before the July 1 deadline.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
March 22, 2024