The U.S. Supreme Court’s June 1, 2015 decision in Equal Opportunity Employment Commission v. Abercrombie & Fitch Stores, Inc. requires employers to take special initiative to accommodate religious practices that may conflict with office policies. The decision illustrates the particularly delicate and potentially conflicting duties of management to deal with such issues.

Retailer Abercrombie maintains multiple and distinct clothing lines, dictating that employees comply with a “Look Policy” governing dress, including a prohibition on “caps.” Job applicant Samantha Elauf is a practicing Muslim who wears a headscarf in public as her faith directs. She was otherwise qualified for an Abercrombie position. However, when informed that Ms. Elauf wore the scarf because of her Muslim faith, the district manager directed her application be denied because all headwear, regardless of its purpose, violates the Look Policy.

The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the Civil Rights Act of 1964 (“Title VII”) and other federal workplace anti-discrimination laws, sued Abercrombie on Ms. Elauf’s behalf.

Abercrombie contended that it had no duty to consider an accommodation of Ms. Elauf’s religious practice of a headscarf because she had not actually informed the company of her need for such an accommodation. A seven justice majority disagreed. Observing that the store’s assistant manager had informed the district manager that “she believed Elauf wore the headscarf because of her faith,” the Court ruled Abercrombie would be in violation of Title VII for the district manager’s refusal to hire her over her potential need for accommodation.

Abercrombie asserted that it had done nothing wrong – and was thus not liable for intentional discrimination -- because the district manager had not treated a religious adherent any less favorably than any applicant who sought to wear a headscarf on the job on non-religious grounds. Yet, the Court observed that management’s “mere neutrality” toward religious practices is not enough. Federal Title VII gives religious practices “favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of that individual’s’ ‘religious observance or practice’.”

Thus, where an applicant or employee makes some indication that his or her actions contrary to policy may be based on religious faith – articles of clothing or personal appearance contrary to a company dress code perhaps the most obvious example – the Abercrombie decision directs business to originate communication to determine if such a religiously based conflict actually exists.

However, as illustrated by the several views Supreme Court justices expressed during Abercrombie’s February 25, 2015 oral argument, just how an employer may broach the subject of possible religiously based conflict is delicate. Asking straight out, for example, whether a headscarf or a hat is a person’s religious practice may violate state or federal standards barring probing questions about an applicant’s or employee’s religion. Thus, Justices Sotomayor and Alito suggested neutral questions that would in effect invite the applicant or employee to bring up any religious conflict at his/her option. Thus, an employer could properly inform an applicant of a company dress or grooming code and ask the person if he/she could comply or possibly had any problem. The question makes no mention of religion and puts it to the applicant to raise religion if, of course, it was important enough to the person to do so.

If and when the applicant or employee puts a religious objection on the table, it is then appropriate and required for management to seek to find a reasonable accommodation for the religious practice. This is what makes the Abercrombie decision so touchy. Ms. Elauf did not actually put out the religious objection. Yet, when there was at least indication of a potential conflict, the Court directs that Abercrombie should have found out if she actually had one.

On the ensuing inquiry to find reasonable accommodation, only where accommodation choices would impose undue economic or operational hardship is the company justified in requiring the worker to forgo the religious practice as an employment condition. See also, Employer Duties to Fight Religious Prejudice and Religious Dress and Grooming and Employers’ Increased Duties to Accommodate.

For more information on this subject, contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Law Offices of Timothy Bowles
June 15, 2015

We have been blogging for some months about California’s new mandatory paid sick leave requirements. Choosing from one or more of several options, all employers in this state must adopt a policy by July 1, 2015. See, Mandatory Paid Sick Leave For California Employees; California Labor Commissioner Provides the FAQs on New Paid Sick Leave Benefits Law; and California Sick Leave Benefit “Clean-up” Legislation Introduced.
These are common client questions and our answers.

1. When does the new sick leave law take effect?

Under California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act), the requirement to begin providing paid sick leave takes effect on July 1, 2015. The Act also required each employer to post a notice on the particular features of that company’s sick leave policy starting January 1, 2015.

1. Does the new paid sick leave law apply only to large employers?

No. With exceptions for collective bargaining agreements and a few other limited circumstances, the Act requires that every California employer provides paid sick leave to all employees, whether temporary, part-time, or full-time.

1. Do I need to give a notice of the new law to employees?

Yes. In addition to prominently posting notice in a spot accessible to all employees, each employer must provide each of its employees a “Notice to Employees” that specifies his/her paid sick leave rights.

1. If we have an existing sick leave policy, can we assume it is fine or should we seek review of the policy to ensure it complies?

Every employer with an existing paid sick days policy should have it reviewed by employment counsel to ensure it complies with the new law. The Act is in many respects complicated and vague in others. Competent employment attorneys should know the law’s nuances and interpretations, while watching for new developments that may break right up to the July 1 effective date.

1. How much sick leave do I need to give?

Each employee, even a part-timer on a short schedule, is entitled to 3 days, or 24 hours, of paid sick leave annually under current interpretations by the California Division of Labor Standards Enforcement (DLSE). See the DLSE frequently-asked questions.

1. Is there a simple method to comply with the law?

“Simple” depends on a good understanding of the options available. There are three separate methods for compliance. First is the “advance method” where the employer provides all of the sick leave at the beginning of the year (i.e., on July 1, 2015, for purposes of commencing compliance under the law this year). Second is the “accrual method” where an employee gradually earns sick leave based upon the number hours he or she works for a company beginning July 1, 2015 or, if employed later, beginning on the first day of employment. The third is any “paid time off” method which includes sick leave at a minimum of three days or 24 hours annually among the reasons for such benefit. To select one of these methods (or more than one, each applicable to certain kinds of workers) requires understanding and analysis of the detailed factors that go into each such method, including how employers may cap the amount of sick leave actually accrued and taken.

1. Do I have to notify employees about how much sick leave they have available?

Yes. Each employee pay stub or a separate paper accompanying an employee’s pay needs to show how much sick leave the person currently has.

1. Can we rely on the current state of the sick leave law?

Probably not. Amendments to the Act intended to clarify vague aspects and eliminate potential contradictions are pending in the Legislature. We will promptly blog any such amendments that pass into law.

1. Do I have to provide paid sick leave benefits to employees hired after July 1, 2015 and, if so, how?

Yes. Just how a business provides the benefit to new hires depends on the method it adopts. Under the advance method, a newly hired worker will have the minimum three days/24 hours of paid sick leave assigned to him or her on the first day of employment. Under the accrual method, that person starts to earn such benefits on his/her first day at the rate specified in company policy. However, under any method, a business is not required to begin actually paying for sick time off until the person has been employed over 89 calendar days.
If you have questions about the new law or what policy you should implement, you may contact any of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Law Offices of Timothy Bowles
June 11, 2015

We have been blogging for some months about California’s new mandatory paid sick leave requirements. Choosing from one or more of several options, all employers in this state must adopt a policy by July 1, 2015. See, Mandatory Paid Sick Leave For California Employees; California Labor Commissioner Provides the FAQs on New Paid Sick Leave Benefits Law; and California Sick Leave Benefit “Clean-up” Legislation Introduced.

These are common client questions and our answers.

1. When does the new sick leave law take effect?
Under California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act), the requirement to begin providing paid sick leave takes effect on July 1, 2015. The Act also required each employer to post a notice on the particular features of that company’s sick leave policy starting January 1, 2015.

2. Does the new paid sick leave law apply only to large employers?
No. With exceptions for collective bargaining agreements and a few other limited circumstances, the Act requires that every California employer provides paid sick leave to all employees, whether temporary, part-time, or full-time.

3. Do I need to give a notice of the new law to employees?
Yes. In addition to prominently posting notice in a spot accessible to all employees, each employer must provide each of its employees a “Notice to Employees” that specifies his/her paid sick leave rights.

4. If we have an existing sick leave policy, can we assume it is fine or should we seek review of the policy to ensure it complies?
Every employer with an existing paid sick days policy should have it reviewed by employment counsel to ensure it complies with the new law. The Act is in many respects complicated and vague in others. Competent employment attorneys should know the law’s nuances and interpretations, while watching for new developments that may break right up to the July 1 effective date.

5. How much sick leave do I need to give?
Each employee, even a part-timer on a short schedule, is entitled to 3 days, or 24 hours, of paid sick leave annually under current interpretations by the California Division of Labor Standards Enforcement (DLSE). See the DLSE frequently-asked questions.

6. Is there a simple method to comply with the law?
“Simple” depends on a good understanding of the options available. There are three separate methods for compliance. First is the “advance method” where the employer provides all of the sick leave at the beginning of the year (i.e., on July 1, 2015, for purposes of commencing compliance under the law this year). Second is the “accrual method” where an employee gradually earns sick leave based upon the number hours he or she works for a company beginning July 1, 2015 or, if employed later, beginning on the first day of employment. The third is any “paid time off” method which includes sick leave at a minimum of three days or 24 hours annually among the reasons for such benefit. To select one of these methods (or more than one, each applicable to certain kinds of workers) requires understanding and analysis of the detailed factors that go into each such method, including how employers may cap the amount of sick leave actually accrued and taken.

7. Do I have to notify employees about how much sick leave they have available?
Yes. Each employee pay stub or a separate paper accompanying an employee’s pay needs to show how much sick leave the person currently has.

8. Can we rely on the current state of the sick leave law?
Probably not. Amendments to the Act intended to clarify vague aspects and eliminate potential contradictions are pending in the Legislature. We will promptly blog any such amendments that pass into law.

9. Do I have to provide paid sick leave benefits to employees hired after July 1, 2015 and, if so, how?
Yes. Just how a business provides the benefit to new hires depends on the method it adopts. Under the advance method, a newly hired worker will have the minimum three days/24 hours of paid sick leave assigned to him or her on the first day of employment. Under the accrual method, that person starts to earn such benefits on his/her first day at the rate specified in company policy. However, under any method, a business is not required to begin actually paying for sick time off until the person has been employed over 89 calendar days.

If you have questions about the new law or what policy you should implement, you may contact any of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin
June 11, 2015

U.S. Supreme Court Decision Warns that Companies Ignore at Their Peril Possible Need to Permit Religious Exceptions to Workplace Policies

The U.S. Supreme Court’s June 1, 2015 decision in Equal Opportunity Employment Commission v. Abercrombie & Fitch Stores, Inc. requires employers to take special initiative to accommodate religious practices that may conflict with office policies. The decision illustrates the particularly delicate and potentially conflicting duties of management to deal with such issues.

Retailer Abercrombie maintains multiple and distinct clothing lines, dictating that employees comply with a “Look Policy” governing dress, including a prohibition on “caps.” Job applicant Samantha Elauf is a practicing Muslim who wears a headscarf in public as her faith directs. She was otherwise qualified for an Abercrombie position. However, when informed that Ms. Elauf wore the scarf because of her Muslim faith, the district manager directed her application be denied because all headwear, regardless of its purpose, violates the Look Policy.

The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the Civil Rights Act of 1964 (“Title VII”) and other federal workplace anti-discrimination laws, sued Abercrombie on Ms. Elauf’s behalf.

Abercrombie contended that it had no duty to consider an accommodation of Ms. Elauf’s religious practice of a headscarf because she had not actually informed the company of her need for such an accommodation. A seven justice majority disagreed. Observing that the store’s assistant manager had informed the district manager that “she believed Elauf wore the headscarf because of her faith,” the Court ruled Abercrombie would be in violation of Title VII for the district manager’s refusal to hire her over her potential need for accommodation.

Abercrombie asserted that it had done nothing wrong – and was thus not liable for intentional discrimination — because the district manager had not treated a religious adherent any less favorably than any applicant who sought to wear a headscarf on the job on non-religious grounds. Yet, the Court observed that management’s “mere neutrality” toward religious practices is not enough. Federal Title VII gives religious practices “favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual … because of that individual’s’ ‘religious observance or practice’.”

Thus, where an applicant or employee makes some indication that his or her actions contrary to policy may be based on religious faith – articles of clothing or personal appearance contrary to a company dress code perhaps the most obvious example – the Abercrombie decision directs business to originate communication to determine if such a religiously based conflict actually exists.

However, as illustrated by the several views Supreme Court justices expressed during Abercrombie’s February 25, 2015 oral argument, just how an employer may broach the subject of possible religiously based conflict is delicate. Asking straight out, for example, whether a headscarf or a hat is a person’s religious practice may violate state or federal standards barring probing questions about an applicant’s or employee’s religion. Thus, Justices Sotomayor and Alito suggested neutral questions that would in effect invite the applicant or employee to bring up any religious conflict at his/her option. Thus, an employer could properly inform an applicant of a company dress or grooming code and ask the person if he/she could comply or possibly had any problem. The question makes no mention of religion and puts it to the applicant to raise religion if, of course, it was important enough to the person to do so.

If and when the applicant or employee puts a religious objection on the table, it is then appropriate and required for management to seek to find a reasonable accommodation for the religious practice. This is what makes the Abercrombie decision so touchy. Ms. Elauf did not actually put out the religious objection. Yet, when there was at least indication of a potential conflict, the Court directs that Abercrombie should have found out if she actually had one.

On the ensuing inquiry to find reasonable accommodation, only where accommodation choices would impose undue economic or operational hardship is the company justified in requiring the worker to forgo the religious practice as an employment condition. See also, Employer Duties to Fight Religious Prejudice and Religious Dress and Grooming and Employers’ Increased Duties to Accommodate.

For more information on this subject, contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin
June 10, 2015

New heat illness prevention regulations have been adopted by the California Office of Administrative Law. They are in effect as of May 1, 2015. Our earlier blog, Heat Illness Prevention Amendments Are Likely to Take Effect May 1, 2015 provides details of what the new regulations require.

The new regulation applies to all outdoor places of employment, but the high heat (over 95 degrees) requirements apply only to the following industries: agriculture, construction, landscaping, oil and gas extraction, and transportation and delivery of agricultural and construction products or other heavy materials, such as furniture, cargo, lumber, freight, cabinets, and other industrial or commercial materials. We recommend that you review the Department of Industrial Relations FAQ dated May 14, 2015 for a discussion of the various issues under the heat illness prevention regulation. Other resources for help in implementing the requirements can be found at CA.gov.

If you have any questions about this, you can contact our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Helena Kobrin
May 29, 2015

New heat illness prevention regulations have been adopted by the California Office of Administrative Law. They are in effect as of May 1, 2015. Our earlier blog, Heat Illness Prevention Amendments Are Likely to Take Effect May 1, 2015 provides details of what the new regulations require.

The new regulation applies to all outdoor places of employment, but the high heat (over 95 degrees) requirements apply only to the following industries: agriculture, construction, landscaping, oil and gas extraction, and transportation and delivery of agricultural and construction products or other heavy materials, such as furniture, cargo, lumber, freight, cabinets, and other industrial or commercial materials. We recommend that you review the Department of Industrial Relations FAQ dated May 14, 2015 for a discussion of the various issues under the heat illness prevention regulation. Other resources for help in implementing the requirements can be found at CA.gov.

If you have any questions about this, you can contact our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Law Offices of Timothy Bowles
May 29, 2015

On May 19, 2015, the Los Angeles City Council approved Motion 4E, providing annual minimum wage increases for employees in the City of Los Angeles up to $15.00 in 2020. The measure applies to all employers, but implementation is delayed for employers having no more than 25 employees. Non-profits with more than 25 employees may apply for a waiver if they meet certain conditions.

The initial increase will be to $10.50 on July 1, 2016. This is $.50 higher than the state minimum wage that goes into effect on January 1, 2016. See our previous blog, Amended Minimum Wage Notice Must Be Posted by July 1, 2014.

The Los Angeles measure provides for further increases each July 1 thereafter – to $12.00 in 2017, $13.25 in 2018, $14.25 in 2019, and finally $15.00/hour on July 1, 2020. Employers who have 25 or fewer employees must begin implementing the increase in July 2017 and have until 2021 to reach $15.00/hour. The approved measure directs that minimum wage for 14-17 year-olds will remain at 85 percent of minimum wage.

The matter has now been referred to the City Attorney to draft an ordinance implementing these changes, to be approved by the City Council. The ordinance is also to provide that wages will increase annually after 2020 according to the Consumer Price Index for Los Angeles.

This move by the City of Los Angeles follows a trend in California and nationally to increase minimum wage. See, Oakland Minimum Wage Escalates to $12.25 and San Francisco Minimum Wage Escalates to $12.25 on May 1, 2015.

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

Helena Kobrin
May 22, 2015

On May 19, 2015, the Los Angeles City Council approved Motion 4E, providing annual minimum wage increases for employees in the City of Los Angeles up to $15.00 in 2020. The measure applies to all employers, but implementation is delayed for employers having no more than 25 employees. Non-profits with more than 25 employees may apply for a waiver if they meet certain conditions.

The initial increase will be to $10.50 on July 1, 2016. This is $.50 higher than the state minimum wage that goes into effect on that date. See our previous blog, Amended Minimum Wage Notice Must Be Posted by July 1, 2014.

The Los Angeles measure provides for further increases each July 1 thereafter – to $12.00 in 2017, $13.25 in 2018, $14.25 in 2019, and finally $15.00/hour on July 1, 2015. Employers who have 25 or fewer employees must begin implementing the increase in July 2017 and have until 2021 to reach $15.00/hour. The approved measure directs that minimum wage for 14-17 year-olds will remain at 85 percent of minimum wage.

The matter has now been referred to the City Attorney to draft an ordinance implementing these changes, to be approved by the City Council. The ordinance is also to provide that wages will increase annually after 2020 according to the Consumer Price Index for Los Angeles.

This move by the City of Los Angeles follows a trend in California and nationally to increase minimum wage. See, Oakland Minimum Wage Escalates to $12.25 and San Francisco Minimum Wage Escalates to $12.25 on May 1, 2015.

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

Law Offices of Timothy Bowles
May 22, 2015

Under federal law, employees may or may not earn wages for preliminary actions at the beginning or “postliminary” activities at the close of a work day. The issue is determined on close attention to the context on a case-by-case basis. For example, earlier in 2014, the U.S. Supreme Court absolved employer U.S. Steel from having to pay workers for the time spent donning specific articles of clothing and protective gear at the start of the day. See our article: The Devil Is in the Details, U.S. Supreme Court Turns to History and Webster’s Dictionary to Defeat a Class Action (Devil Article).

In Integrity Staffing Solutions, Inc. v. Busk, 2014 Westlaw 6885951, 574 United States Reports (U.S.) __ [December 9, 2014]), the Supreme Court addressed an end-of-the-day work situation, whether the Amazon warehouse workers earned wages under the Fair Labor Standards Act (FLSA) for the roughly 25 minutes spent waiting for and receiving daily security screenings after clocking out.

As we explained in the Devil Article, whether an employer has wage obligations under federal law for start-of-the-day “wind-up” activities or day’s end “wind down” actions is determined by the interplay of 1938 FLSA (which imposed near-blanket responsibility for payment for all time workers spent at the job) and the 1947 Portal-to-Portal Act (which exempted certain start and end activities from wage payments).

The key consideration is whether the starting or ending actions are part of a job’s “principal activities” because they are “integral and indispensable” to a worker’s performance of productive work. In one case (Mitchell v. Meat Packing, 350 U.S. 260, 262 (1956)), the Court found that time meatpacker employees spent sharpening their knives was compensable because dull blades would slow down production. In a more recent decision (IBP, Inc. v. Alvarez, 546 U.S. 21, 42 (2005)), the Court found that time poultry-plant employees spent waiting to put on protective gear was noncompensable because this waiting was “two steps removed from the productive activity on the assembly line.”

In the December, 2014 Integrity Staffing decision, the Supreme Court found the Amazon warehouse employees’ “productive work” was the location and movement of goods on the floor of the worksite. The workers’ time waiting in line and going through security screenings (to check at the end of the day for possible theft from the workplace) was not integral and indispensable to their principal duties and could have been eliminated without affecting the workers’ ability to perform their jobs. Thus, employer Integrity Staffing did not owe those employees wages for that time.

While the federal standards thus limit compensable work time in certain contexts, California law is more favorable to employees. Generally, businesses in this state must count the time workers spend at the work site changing clothes, cleaning up or performing other preparatory actions as part of payable “hours worked.” However, California Division of Labor Standards Enforcement (DLSE) enforcement guidelines do recognize some limited exceptions.

The Integrity Staffing case again illustrates that the question of whether employees earn wages for the time they spend on actions to start and/or end the day comes down to the specific circumstances in each situation. Particularly where management seeks to exclude such time from the paid workday, consulting with experienced employment legal counsel is a good idea.

If you have any questions about these issues, feel free to contact one of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

Law Offices of Timothy Bowles
May 21, 2015