EEOC Settles Male Gender Discrimination Case For $1.1 Million

The U.S. Equal Employment Opportunity Commission (EEOC) has announced the $1.1 million resolution of its class action lawsuit against world-leading cosmetic company Estée Lauder.

The government alleged Estée Lauder discriminated against a class of 210 new fathers under its paid parental leave policy. Although no federal or state law requires an employer to pay for such leave, Estée Lauder provided paid parental leave as an employee benefit. That policy, however, did not provide fathers with any return to work benefits and only provided them with two weeks of paid leave as compared to the six weeks that new mothers received. The parental leave at issue was separate from childbirth-related medical leave.

In the consent decree, Estée Lauder also agreed to revise and implement a new parental leave policy providing covered employees, regardless of gender or caregiver status, up to 20 weeks of paid leave and six weeks of flexible work schedule upon returning to work. The company must also train human resources and management personnel on federal anti-bias laws and on the details of its revised parental leave policy.

EEOC acting director Mindy E. Weinstein commented, “This settlement ensures that Estée Lauder will provide equal opportunities for time off to new dads and new moms, which is what the law requires, and what makes sense for families.” Philadelphia District Office attorney Thomas Rethage added, “Parental leave policies should not reflect presumptions or stereotypes about gender roles.”

This case is an expensive example of why employers should take all appropriate measures to ensure equal leave benefits to all employees, and implement and follow procedures to promptly investigate and resolve employee complaints of discrimination of any kind, in consultation with experienced legal counsel as needed.

See also:

• California “New Parental Leave Act” Impacts Small Business (December, 2017)
• Gender Designations in the Workplace (April, 2018)
• If it Isn’t Written, Workplace Policy Is Anyone’s Guess (April, 2018)

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

Cindy Bamforth

September 13, 2018

Keeping Employee Tardiness and Absences to a Minimum

It would seem unnecessary to have a written policy requiring workers to show up in order to keep their jobs and be paid. Yet employers often experience problems with no shows and tardiness, so it’s best to issue clear written directives mandating attendance, laying out work hours and days, and the procedure for employees to notify the business when circumstances render it impossible to keep the schedule.

The policy should provide examples of reasonable, legitimate circumstances for absences, including illness or family emergency, and can include examples of what is not, such as an urge to go to the beach. Some companies also specify bonuses for wellness, i.e, consistent attendance and productivity, although they should not encourage people who are ill to come to work if it will jeopardize their own health or that of others.

Some suggested elements in such a policy are:

Employee work hours – Define a work day, including the times for starting, taking meals, and ending work. Provide the schedules for each shift if the company has more than one. Also inform workers of their rights to take paid rest breaks and unpaid meal breaks;

Define lateness – Be clear about what the company considers lateness (including any few excused minutes) and whom to notify, as well as any procedure for doing so if one is going to be late;

Lay out leaves applicable to the business, for example:

• Family Medical Leave Act (FMLA) (federal), California Family Rights Act (CFRA – If the business has 50 or more employees, it must comply with these laws and should have written policy covering qualifications for such leaves and the applicable procedures;
• Pregnancy Leave –A California business with five or more employees must provide unpaid leave benefits for pregnant women and new moms. Written policy should describe the requirements and procedures compatible with the law;
• New Parent Leave Act– Effective 2018, a business with 20 or more employees must provide leave under the New Parent Leave Act and should include information on that leave and qualifications for it in written policy;
• Leave of absence– A company that chooses to provide unpaid leaves of absence on other grounds should include policy on the criteria and rules for such leaves;

Discipline and consequences – The policy should also specify the company’s right to determine consequences for attendance policy violations. The standard should leave room for discretion based on the facts, i.e., a business should not specify unvarying discipline for an infraction because circumstances of each situation are different. Of course, an employer’s disciplinary actions may not ever discriminate on the basis of gender, race, national origin, older age, and the myriad of other protected classifications.

“At-will” status permits either the employer or the employee to freely end the relationship even with no advance notice and for no reason at all. Therefore, a business can legitimately terminate an “at-will” worker who fails to arrive or is late.

While there can be exceptions to anything, management should generally not make such a significant move on a single instance or a few isolated occurrences. Termination is rarely the first solution since a company has usually gone through some expense and time to train an individual worker. The majority of absent or tardy employees are willing and able to improve their reliability by a discussion alone.

Companies should employ a system for documenting in writing employee lateness and absences and any discipline it metes out for such infractions.

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

Helena Kobrin

September 12, 2018

Employers Must Pay for All Minutes Worked

Before and After Shifts

Employers who require workers to perform short tasks before or after clocking out for their shift will now need to rethink this practice, even if it takes only an extra minute or so per day to boot up or turn off a computer and lock the door on the way out.

Under certain circumstances, federal and state courts have occasionally permitted employers to disregard miniscule amounts of time employees spend working off the clock on tasks that cannot be recorded properly because they are too short, uncertain or indefinite (the de minimis rule).

In class action Troester v. Starbucks Corporation, the plaintiff, a minimum wage hourly shift supervisor, alleged that he worked off the clock at the end of nearly every shift performing administrative tasks such as uploading a daily computerized report, closing the store, setting the alarm and walking co-workers to their cars. Plaintiff claimed that during the 17 months of his Starbucks employment he worked a total of nearly 13 hours of such de minimis time for approximately $103.00 in unpaid wages.

The California Supreme Court decided the de minimis rule did not apply and that Starbucks thus failed to pay all wages due as: (i) the employer required plaintiff to routinely work anywhere from four to 10 extra minutes per shift after clocking out; (ii) such time was predictable and trackable, especially with today’s modern technology; and (iii) the number of minutes added up to an amount that was not trivial to the average worker.

The final result may be far from trivial. As a class action on behalf of all non-managerial employees who performed store closing tasks for Starbucks operations in California from mid-2009 to October 2010, the company potentially faces significant damages in underpaid compensation.

The Court concluded that California law does “not allow employers to require employees to routinely work for minutes off-the-clock without compensation. We leave open whether there are wage claims involving employee activities that are so irregular or brief in duration that it would not be reasonable to require employers to compensate employees for the time spent on them.”

Based on this case, employers should make use of available state-of-the-art time-tracking technology to precisely track and pay for every minute of work performed. Wherever possible, employers should also restructure any routine tasks to avoid any work occurring before or after clocking out.

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

Cindy Bamforth

September 7, 2018

Labor Enforcement Task Force Targeting “Underground Economy”

The Labor Enforcement Task Force (LETF), a coalition of California agencies directed by the Department of Industrial Relations (DIR), has been targeting the “underground economy” for violation of employment laws since 2012. Members include the Labor Commissioner’s Department (Division of Labor Standards Enforcement), Cal/OSHA, Employment Development Department, Department of Insurance, Contractors State License Board, Bureau of Automotive Repair, Department of Alcoholic Beverage Control, and Department of Tax and Fee Administration.

In a recent newsletter, the DIR announced that, in 2017-2018, 93% of businesses that the LETF inspected had violations of labor laws under at least one of the agencies involved.

In just the first quarter of 2018, the LETF imposed $10 million in penalties for wage theft, lack of workers’ compensation insurance, lack of required licenses, and safety violations. In addition, a finding of no workers compensation insurance resulted in the Labor Commissioner issuing stop orders to 275 employers, and Cal/OSHA required 26 employers to stop using equipment or engaging in a particular operation found to cause “immediate danger of serious injury or fatality.”

The LETF targets industries that are well known for frequent violations of employment laws, including manufacturing, automotive repair, restaurant, agriculture, garment, and construction. These particular frequent violator industries are named in the newsletter, but other industries may also be included.

All enterprises are of course required to comply with applicable employment laws and should consult with an attorney to find out if their business model is legally compliant. They should fix any issues that currently are not. If a business is in a targeted industry, it is even more crucial to do so without delay, as it could be a sitting duck at the hands of the LETF or other agencies.

See also:

• Cautionary Tales Episode 16: Spa Nailed for $1.2 Million, “Wage Theft” (August, 2018)
• Cautionary Tales Episode 15: Drywall Company Plastered With Nearly $2 Million in Citations (August, 2018)
• Cautionary Tales Episode 10: $10 Million in Citations Against Seven Restaurants For Wage Violations (June, 2018)

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

Helena Kobrin

September 6, 2018

Employee Privacy on Social Media

California law prohibits employer access to the personal social media accounts of its employees. “Social media” is defined as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”

Intended to protect privacy, the law prohibits a California employer from requiring employees or job applicants to:

• Disclose a username or password for the purpose of accessing personal social media;
• Access personal social media in the presence of the employer; or
• With the exceptions below, to divulge any personal social media.

Employers are permitted to request personal social media information as part of an investigation into alleged employee misconduct or illegal activity if there is reason to believe relevant information exists in that social media. In such a case, the employer may only use the social media information for purposes of the investigation.

Employers may require employees to disclose usernames, passwords or other access information for employer-issued electronic devices, such as computers, phones, or tablets.

Companies that issue such devices to employees should consider publishing written policies on expected etiquette and on management’s ability to access and monitor such devices. Employees should understand that their privacy rights do not extend to the content of emails or texts exchanged via company equipment.

The policy should include:

• Employee Privacy – There is no reasonable expectation of privacy for the information stored on computers or other devices owned by the company. Further, management has the right to review any such information at any time;
• Ownership of Information – Any information stored or transmitted on a company-owned electronic device is property of the company;
• Acceptable Usage – Employees may only use e-mail or texting on company devices for company business. Communications should be professional and respectful and not degrading, insulting or bullying; and
• Company Social Media – The Company owns, operates and manages its social media accounts. Users are to set up the accounts with company email, etc., and are required to provide the password/log-in information to management.

California businesses should closely review their workplace personnel management practices and social media policies to ensure they are consistent with the above rules and provide clarity on employee privacy rights for company-issued devices.

• If It Isn’t Written, Workplace Policy is Anyone’s Guess (March, 2018)
• Defining Employee Privacy (April, 2011)
• Expecting Privacy at Work? Fugeddaboutit! (January, 2011)

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

Helena Kobrin

August 30, 2018

HOW TO ADDRESS THE EMPLOYEE DRESS CODE

A well-written dress code and personal appearances policy clearly instructs employees on what type of business attire the company finds appropriate. Depending on the nature of the business enterprise or industry, employers may require employees to wear formal business attire every day. Some implement a more casual dress code on Fridays only, and others may allow business casual at all times.

In addition to deciding on the above guidelines, employers should consider these points when drafting a dress code policy:

• Require all employees to dress in a neat and well-presented manner.
• Instruct employees to report to work well-groomed, clean and dressed according to the requirements of the job position.
• Include language on workplace safety equipment/clothing such as closed toe shoes for warehouse workers.
• Prohibit excessive use of perfumes, colognes and other fragrances when working in close proximity with others.
• Decide whether to issue a separate, more relaxed summer dress code policy.
• Include a statement affirming the employer’s willingness to reasonably accommodate an employee’s sincerely-held religious beliefs, observances or practices regarding workplace attire or grooming unless such accommodation creates undue hardship or a safety issue.
• Adhere to applicable transgender and gender-identity laws by allowing employees to appear or dress in a manner consistent with the employee’s gender identity or gender expression.
• Provide gender-neutral examples of appropriate versus inappropriate attire.
• Consider requiring inappropriately-dressed employees to return home to change without pay, to the extent permitted by applicable law.

The employer should also train managers how to properly enforce the policy without making an employee uncomfortable, such as when discussing whether a female employee’s low-cut top is too revealing.

See also:

• When Image is the Thing (August, 2018).
• Gender Designations in the Workplace (April, 2018)
• Accommodating Religious Practices (June, 2015)
• Employers Duties to Fight Religious Prejudice (May, 2014)

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

Cindy Bamforth

August 29, 2018

Required Uniforms are Employer’s Responsibility

Under California Labor Code section 452, employers may require workers to wear uniforms of a specified color, quality, texture, style and form so long as the employer provides and maintains them. See, Dress to Impress (July, 2011).

Unless the clothing is commonly worn within a particular occupation and can be worn from one job to another within a specific industry (for example, a nurse’s white uniform or a food server’s black-and-white uniform), the employer is responsible for providing the uniform even if it is comprised of clothing or accessories that can be worn off the job, such as a tropical shirt and khaki pants.

A required uniform or company’s dress standards may not be discriminatory in any way. For example, Abercrombie & Fitch (A&F) lost a lawsuit for religious discrimination over its unwillingness to accommodate, and consequent refusal to hire, a Muslim woman who wore a head scarf that violated its uniform policy for employees. See, Accommodating Religious Practices (June 2015) and Workplace Discrimination.

Employers may instruct employees to maintain their issued uniforms which require minimal time for their care, such as only machine washing and drying. If a uniform requires more complex care – for example, ironing, dry cleaning, special laundering or repairs – the employer must provide either maintenance or a maintenance allowance for the care.

California law allows employers to require deposits as security for return of uniforms, but there are strict rules and it is not generally advisable. See, Industrial Welfare Commission Orders (IWC Orders), Section 9. An employer may never take pay deductions for normal wear and tear. See, Wage Deductions (August 2016). Under the IWC Orders, an employer may deduct from the last pay check for a uniform that is not returned – one of the few permitted final pay deductions.

If an employer requires workplace uniforms, it should have a good workplace policy addressing all aspects of issuing, maintaining, and returning uniforms upon termination of employment.

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

Helena Kobrin

August 22, 2018

California’s Ban Clarified On Applicant Salary History

Intended to eliminate traditional disparities in pay levels for the same or similar work, new California Labor Code section 432.3 prohibits employers from seeking an applicant’s salary history. See, What’s New 2018 – Salary History (December 2017). On the other hand, such employers must disclose a job position’s “pay scale” upon the applicant’s “reasonable request.”

To resolve certain ambiguities in this statute, the state has enacted so-called clean-up legislation (the Amendments), effective January 1, 2019. This includes several new definitions:

• Pay scale “means a salary or hourly wage range” for the job position.

• Reasonable request for the pay scale “means a request made after an applicant has completed an initial interview with the employer.”

• Applicant “means an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”

The Amendments also clarify that employers may ask an applicant about his or her salary expectations for the position being applied for.

In addition, the Amendments confirm that although an applicant’s salary history shall never justify any pay disparity, the rules are slightly different regarding current employees. Employers may base compensation decisions on their current employees’ existing salary, so long as the employer can justify any pay disparity of employees of a different gender, race or ethnicity who perform substantially similar work. Valid wage differentials are limited to a seniority system; a merit system; a system that measures earnings by quantity or quality of production; and/or a bona fide factor such as education, training or experience. See, Labor Code section 1197.5, California Fair Pay Act.

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

Cindy Bamforth

August 21, 2018

Same Rules for Rest Breaks, Meal Periods and Paid Sick Leave

Hiring workers for shortened hours or for fewer days weekly does not absolve an employer from complying with the full range of workplace legal requirements. In fact, greater attention may be required with part-time employees to avoid the wage and hour pitfalls.

Paid Rest Breaks. Under this state’s Industrial Wage Commission (IWC) Wage Orders, California businesses generally must provide a paid ten-minute rest period for “each four hours worked (or major fraction thereof),” in which the employee is relieved of all duties. There is a special rule for someone who only works three hours or less in a day. Thus, for example:

• Up to three hours daily labor: no break required;
• Over three hours and up to six hours daily labor: one break required (four hours plus half or less of a second four hours);
• Over six hours and up to ten hours daily labor: two breaks required (between four hours plus more than half of another four and two four hour periods and half or less of a third four hours).

Unpaid Meal Periods. Employers may not employ a not-exempt-from overtime worker for a work period of more than five (5) hours a day without providing the person an off-duty meal period of not less than 30 minutes commencing before the end of the fifth hour. However, if the employee works no more than six (6) hours in a day, the employee may by written agreement waive that meal period. See, IWC Wage Orders and Labor Code 512.

For example, if an employee begins work at 9:00 a.m. and works a six-hour day, the employee must start a single meal break before 2:00 p.m. when the fifth hour of work ends, unless the employee signs a meal break waiver.

Paid Sick Leave. Most California employers regardless of size must provide a minimum of 24-hours of paid sick leave per year to any temporary, part-time or full-time employee who has worked in the state for 30 days. Whether part-time or full-time, an employee is entitled to use paid sick days beginning on the 90th day of employment.

Companies generally have the choice of adopting a plan that accrues such paid leave at a rate of at least one hour for every 30 hours worked or one that allocates all paid hours up-front annually. Thus, full-time workers for a company with an accrual plan will reach maximum benefit rights sooner than its part-timers. (Employers with so-called “paid time off” (PTO) policies may have special rules that apply.) See, Mandatory Paid Sick Leave for California Employees (September, 2014).

Businesses must follow the higher paid sick leave standards imposed by particular cities or counties, even if employees work within their boundaries for only a few hours a week. See, for example, Requiring Employers to Pay for Sick Days; a National Trend (August, 2017); San Diego Paid Sick Leave Requirements, Effective July 11 and September 2, 2016 (August 2016); City of Los Angeles New Paid Sick Leave Requirements (June 2016); and Oakland Paid Sick Leave Law Provides Greater Benefits Than the Upcoming State Requirements (March 2015).

Other Requirements, including Workers’ Compensation: Among other things, employers must also provide workers’ compensation insurance coverage for part-time workers as well as pay for daily overtime hours (over eight), provide the standard pay deductions, and include compliant wage statements with paychecks.

See also:

• Required Meal Periods and Rest Breaks Revisited (April, 2018)

• Employee Meal Periods and Rest Breaks (September, 2016)

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

Helena Kobrin

August 17, 2018