DON’T BE COLD TO THE OLD

Google Settles Age Discrimination Case for $11 Million

Federal age discrimination protections, including the Age Discrimination in Employment Act of 1967 (ADEA), apply to companies with 20 or more on payroll. California’s workplace anti-discrimination law, the Fair Employment and Housing Act (FEHA), applies to employers with five or more on payroll. Both types of age-related discrimination laws only apply to persons age 40 or over.

In a federal class action lawsuit against Google, named plaintiffs Robert Heath (age 60+) and Cheryl Fillekes (age 47) alleged that despite possessing highly pertinent qualifications and experience, Google engaged in an intentional, systematic pattern of discrimination against 227 applicants age 40-plus interviewing for technical engineering positions throughout the United States.

This case recently settled for $11 million, with Google agreeing to train managers and employees on age-based bias; create an internal recruiting subcommittee to focus on age diversity; and ensure the company’s marketing efforts reflect age diversity.

Best practices:

• Do not restrict or prefer job candidates on the basis of any “protected class.”
• Periodically refresh or re-train job interviewers on acceptable and unacceptable employment inquiries.
• Never request age information from job applicants except where a certain age range or age limit is a legitimate “bona fide occupational qualification.”
• Include the phrase “An Equal Opportunity Employer” with all job listings.
• When including images with job postings, ensure they represent a diverse population.
• Use reference guides such as the Department of Fair Employment and Housing’s Inquiries Sheet when conducting interviews.
• Consult with knowledgeable legal counsel for further assistance.

See also,

• Avoid Discriminatory Job Recruitment and Advertising (August, 2019)
• Interviews Gone Wild (October, 2018)
• Job Interview Errors to Avoid (April, 2018)
• Asking for Job Applicant Age is a No-No (August, 2017)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

September 5, 2019

DON’T BE COLD TO THE OLD

EMPLOYMENT ELIGIBILITY VERIFICATION FORM I-9 EXPIRES AUGUST 31, 2019

The federal government requires all U.S. employers to verify identity and work authorization for each employee hired within the U.S., including citizens and non-citizens, using “Form I-9, Employment Eligibility Verification” (the I-9 Form or Form).

The I-9 Form directs the employee to present specified documents evidencing identity and employment authorization and sign section 1 of the Form upon hire. The employer must (i) examine these documents to determine whether they reasonably appear genuine and relate to the employee; (ii) record the document information on the Form; (iii) retain the fully-completed Form for a designated period (either three years after the date of hire, or one year after the date employment is terminated, whichever is later); and (iv) make it available for inspection by authorized government officers.

The current I-9 Form and its 15-page “Instructions for Form I-9, Employment Eligibility Verification” (the Instructions) both expire on August 31, 2019.

Although the U.S. Citizenship and Immigration Services (USCIS) intends to make minor revisions to the Instructions to better assist employers, it does not anticipate making any changes to the I-9 Form itself.

Until the USCIS posts the updated I-9 Form (and the Instructions) with new expiration dates, employers should continue to use the existing version available on USCIS’s online I-9 resource center.

For further guidance, employers can download the USCIS’s comprehensive “M-274: Handbook for Employers: Guidance for Completing Form I-9” (Handbook), which includes information on completing and correcting the Form, reverifying or updating employment authorization, and frequently-asked questions.

For information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

August 22, 2019

Protections for People Needing Assistive Animals

A recent settlement extends California’s Fair Employment and Housing Act (FEHA) disabilities protection to rental applicants seeking to move in with emotional support pets.

In a complaint filed with the Department of Fair Employment and Housing (DFEH) against Adams West Associates, Ltd. and Bedford Group of Companies, LLC, a prospective tenant alleged FEHA discrimination when denied an apartment over his “comfort animals,” three cats. The applicant supported his claim with a psychologist’s note that the cats were needed to accommodate his mental disability. He also asserted this building had no formal pet policy. Defendants settled for $20,000 to compensate for the man’s higher rent elsewhere as well as his purported emotional distress from the rejection.

California law also protects employees with assistive animals, defined as “an animal that is necessary as a reasonable accommodation for a person with a disability.” These include service animals “individually trained to the requirements of a person with a disability,” (e.g. guide and signal dogs) as well as support animals that provide “emotional, cognitive, or other similar support to a person with a disability.” However, as California law does not specify the species of assistive animals, miniature horses, ostriches, and rats could all be in the running.

Of course, employers are not required to hire an applicant with an assistive animal. They are however required to engage in the interactive process to determine if the disability indicated can be reasonably accommodated.

Thus, best practices would include the employer’s request for a letter from the employee’s health care provider confirming the disability and explaining why the person needs the assistive animal in the workplace (e.g., how the animal can enable the employee to perform essential job functions). Employers can also require annual recertification of that need.

However, if proposed accommodation for the animal would work an undue hardship upon the employer’s operations or finances, it may reject the applicant along with his or her proposed animal.

Obviously, a business could decline to employ an applicant who required a poisonous snake as a workplace companion. Yet, even such extreme examples require the case-by-case interactive process, well documented.

California regulations recognize the accommodation process can extend to the first two weeks of allowing the assistive animal in the workplace. It may take such an interim period to determine if the assistive animal is free from offensive odors, is housebroken, or not otherwise a danger to anyone’s health or safety.

Thus, among California employer best practices:

• Recognize that any kind of animal might fit the definition on “assistive”;
• Engage in a good-faith interactive process addressing the appropriate accommodation for a disabled worker seeking to bring an assistive animal;
• Calendar the two-week period in which tentative accommodation may be rescinded on factors that demonstrate undue hardship for the hiring, including good behavior; and
• Ensure any written policy conforms to the legal requirements for assistive animals

An employment attorney can assist with drafting a policy or the interactive process when needed.

See also:

• How to Handle Assistive Animals in the Workplace (May 2018)
• How to Handle Customers’ Service Animals (May 2018)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

August 30, 2019

Protections for People Needing Assistive Animals

LISTEN

Don’t Turn a Deaf Ear to Employee Disabilities

The goal of the Americans with Disabilities Act (ADA) “is to ensure that people with disabilities have the same rights and opportunities as everyone else.” Sometimes, however, companies need a not-so-friendly reminder from the Equal Employment Opportunity Commission (EEOC) of their reasonable accommodation obligations for ADA-protected employees.

So it was with a Wal-Mart in northwest Washington D.C. that refused to accommodate the needs of two deaf employees, choosing not to furnish close-captioned videos, sign language interpreters, or other accommodations to enable the workers to participate fully in store training, meetings, and the like. See Press Release.

After the EEOC unsuccessfully tried to settle the accommodation issues with Wal-Mart Stores East, LP, it sued this employer. The parties later consented to a court order requiring the Wal-Mart to pay $100,000 and prohibiting it from further violation of the ADA and retaliation against the employees. The company also must:

• Amend its management guidelines for reasonable accommodation;
• Train management on the ADA guidelines for accommodation;
• Train non-management employees on the ADA and how to seek accommodation;
• Handle issues that concern accommodation of deaf employees;
• Post a notice about the settlement; and
• Report to the EEOC on compliance.

In a statement applicable to any employee disability, Acting Washington Field Office District Director Mindy Weinstein noted “[t]his settlement should encourage all employers to provide reasonable accommodations that allow equal access for deaf and hard-of-hearing employees and applicants to engage fully in the workplace,”

The reasonable accommodation requirement is not absolute; it can be overcome if it causes a company undue hardship, a case by case analysis. However, having close-captioned training videos is unlikely to be accepted as an undue hardship for a company the size of any given Wal-Mart. By making such an accommodation, a company can likely gain a more engaged employee, with both parties benefiting.

See also:

• DFEH Charged San Diego Credit Union with Failing to Accommodate Disabled Employee (February 2019).
• EEOC Sues California Grocery Store for Disability Discrimination (October 2018).
• Hearing Disabled Applicants Deserve Equal Consideration (September, 2018).
• Don’t Flunk the Reasonable Accommodation Test (May 2018).
• Preventing Workplace Discrimination (August, 2017).

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

August 23, 2019

Don’t Turn a Deaf Ear to Employee Disabilities

CHOKE THE “JOKES”

EEOC Settles Tex-Mex Restaurant Servers’ Sexual Harassment Case for $40,000

The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting employment discrimination and harassment based on sex, including sexual orientation.

On August 9, 2019, the EEOC announced the $40,000 resolution of its harassment lawsuit against Virginia-based El Tio Tex- Mex Grill (El Tio).

The government alleged El Tio employees routinely sexually harassed a gay male server and his heterosexual co-worker with homophobic comments and taunts about their sexuality and friendship. Both claimed to have reported the harassment multiple times but that management ignored their complaints.

To settle the case, El Tio agreed to pay $40,000 to the two employees, implement effective policies and complaint procedures, and train all staff on the new policies and workplace harassment issues.

EEOC Regional Attorney Debra M. Lawrence commented, “The EEOC is committed to ensuring that no employee or applicant is discriminated against or harassed based on sexual orientation. We are gratified that El Tio worked with the EEOC to reach an amicable resolution of this lawsuit. The consent decree includes significant equitable relief that will benefit all company employees.”

This case is another example of why employers should properly and effectively respond to an employee’s sexual harassment complaints. In addition to sexual harassment prevention training and properly-worded anti-harassment policy, employers should ensure all workers are correctly educated on various forms of inappropriate harassment, discrimination and retaliation.

See also,

• State Settles Sexual Harassment Case with Cypress Police Department (July, 2019)
• Harassment Prevention Training Is Mandatory in California 2019 Deadline (February, 2019)
• What’s New for 2019 – California’s Increased Protections Against Workplace Harassment (February, 2019)
• What’s New for 2019 – California’s Increased Protections Against Harassment (January, 2019)
• What’s New in 2019 – #Metoo and The Workplace (December, 2018)

• Wake Up Call (August, 2018)

• Are You Doing Everything Possible to Prevent Workplace Sexual Harassment? (March, 2018)

We provide live on-site anti-harassment training for all California employees for a flat fee. We also provide anti-harassment policies within our employee handbook.

For information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

August 15, 2019

EEOC Settles Tex-Mex Restaurant Servers’ Sexual Harassment Case for $40,000

California’s Threshold for Required Heat Illness Safeguards

An employer’s obligations to protect outdoor workers from heat-related illnesses starts at 80 degrees Fahrenheit (that’s 26.7 degrees Celsius to be precise). So say California’s Occupational Safety & Health Standards Board (OSHSB) regulations.

The regulations incorporate common sense rules for keeping workers safe:

• Have free, fresh, and “suitably cool” drinking water available onsite
• If temperatures top 80 degrees, provide access to shady rest areas
• Allow and encourage preventative cool-down to avoid overheating
• Take specified additional measures for high-heat (over 95 degrees), such as observing employees for signs of heat illness, having a buddy system, and ensuring 10-minute cool-down breaks every two hours
• Provide employee training to prevent heat illness

California’s Division on Occupational Safety and Health (Cal/OSHA) provides additional guidance, including information on what triggers heat illness, what to do about it, and creating a required written prevention plan.

A heat illness plan is one part of an employer’s Illness and Injury Prevention Plan (IIPP) and must be available at the worksite(s) to which it applies. If a business has a majority of workers who are non-English speakers, then it must translate its plan into the language(s) understood by the majority of the company’s workers.

Expect Cal/OSHA to engage in increased enforcement of these heat illness preventative measures during the summer. See, Cal/OSHA Increases Enforcement (June, 2011).

The OSHSB proposed a comparable set of regulations for indoor employees earlier this year, which has been going through revisions and is now in the rulemaking process.

Employers that have high-heat environments indoors or outdoors should be vigilant about protecting employees from heat illness whether specific rules exist or not and should regularly review IIPP measures to prevent heat-related illness.

See also:

• Summer Is Here – Are your Outdoor Workers Protected from Heat Illness? (June 2018)
• New Regulations Coming to Prevent Heat Illness in the California Workplace (April 2017)
• New Heat Illness Prevention Measures Now in Place(May, 2015)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

August 9, 2019

Woman showing ankle, 1908

A California appellate court recently addressed whether BJ’s Restaurants (BJ’s) improperly failed to reimburse its employees for the purchase of slip-resistant shoes.

Server Krista Townley sued on behalf of herself and other similarly-affected hourly co-workers alleging BJ’s Restaurants (BJ’s) required them to wear black, slip-resistant, close-toed shoes for safety reasons without supplying or reimbursing the footwear. Townley alleged BJ’s actions violated California Labor Code section 2802 requiring employers to reimburse workers for all necessary expenses incurred as part of the job.

BJ’s argued that although all hourly restaurant employees had to wear such footwear to avoid slip and fall accidents, the company did not instruct its workers to purchase a specific brand, style, or design of shoes, and did not prohibit wearing these shoes outside of work.

The California Court of Appeal sided with BJ’s, concluding that the cost of the slip-resistant shoes does not qualify as a “necessary expenditure” because they were basic, non-uniform wardrobe items.

Moral: employers should implement policies and practices to properly address all work-related expense reimbursements.

See also:

• Dress to Impress (November, 2016).
• Wages Deductions (August, 2016).
• Ain’t No Such Thing as a “Free Call” (August, 2014)

For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

August 6, 2019

Workers, 1901

Advertising and recruiting of desired applicants are the first steps in the hiring process. Such outreach must not discriminate against members of any “protected class,” characteristics shielded by federal and state employment discrimination laws. In California, these include race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.

Advertisements should thus not restrict, exclude or classify potential candidates based on any such protected class. For example, do not use language indicating a preferred age range under age 40, such as “young and energetic,” “youthful,” “recent college graduate,” “boy,” “girl,” or “must have grown up using technology from an early age.”

Also steer clear of terms such as “must be a U.S. citizen” (unless the job legally requires it for government clearance, etc.) or “the ideal candidate is a single person able to travel frequently.”

Best practices include:

• Use gender-neutral job titles, such as foreperson and salesperson
• Ensure you are not restricting or preferring individuals on the basis of any “protected class”
• Include the phrase “An Equal Opportunity Employer” with the job listing
• When including images with your job posting, make sure they represent a diverse population

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

August 2, 2019

OVER THE BORDERLINE

State Agency Settles Sex and National Origin Discrimination Case for $450,0000

On July 26, 2019 the California Department of Fair Employment and Housing (DFEH) announced the $450,000 settlement of a sexual harassment, national origin and retaliation case against Pioneer Pines Mobile Home Park.

The complainant, a female employee of Mexican descent who lived and worked at the mobile home park, alleged her former supervisor engaged in “unwanted touching, verbal harassment and ridicule for complaining.” Despite being aware of the unwelcome conduct, management purportedly permitted it to continue.

The complainant also alleged that certain individuals made extremely derogatory comments about people of Mexican ancestry.

After complaining about the harassment, management purportedly retaliated by reducing complainant’s schedule and ultimately terminating her employment.

In addition to the $450,000 monetary settlement, the employer agreed to implement a bilingual (Spanish and English) anti-discrimination policy, participate in anti-harassment and cultural sensitivity trainings, and hire an independent organization for four years to oversee its full compliance with all settlement terms.

As DFEH Director Kevin Kish commented, “Unlawful harassment can be based on multiple intersectional grounds, including sex and national origin, and we encourage anyone experiencing harassment at work or in their home to file a complaint.”

This lawsuit reiterates why employers should correctly and effectively respond to an employee’s discrimination, harassment and/or retaliation complaints. In addition to implementing proper anti-harassment policy and training, employers should educate all workers and management on how to report, investigate and resolve various forms of inappropriate workplace conduct.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also,

• United State of Procrastination. (September, 2019).
• EEOC Settles Tex-Mex Restaurant Server’s Sexual Harassment Case for $40,000 (August, 2019).
• State Settles Sexual Harassment Case with Cypress Police Department(July, 2019).
• National Origin Discrimination Clarified (June, 2018).

Cindy Bamforth

September 13, 2019