Companies Must Uphold Worker Rights to Religious Garb or Grooming Even if It Means Losing Business

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the federal laws prohibiting discrimination in commerce, including the Civil Rights Act of 1964, nicknamed “Title VII.” In the wake of the September 11 attacks, the EEOC has fielded a dramatic increase in religious discrimination complaints, 3,721 in fiscal 2013, well more than double the 1,709 charges received in fiscal 1997. This increasing volume has recently prompted the agency to publish a guide to help employers understand their obligations under this law, “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.”

The EEOC offers several examples of religious dress and grooming practices including “wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”

Title VII defines religion very broadly, including “not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.” An employee’s belief or practice can also be “religious” under Title VII “even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.”

Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.

It is not necessarily an employer’s discretion to determine just what sort of hardship is sufficient to absolve it from complying with the law. As has been the critical role of the Civil Rights Act since its creation 50 years ago, the EEOC emphasizes that customer preference – and the potential for loss of business out of customer prejudices against one religion or another – cannot amount to a business’s claimed undue hardship by definition. Just a company’s concern over public bigotry and backlash from employing a member of a racial minority is never justification for refusing to hire that person, similar concern over public reaction to particular religious garb is irrelevant.

The EEOC offers a striking example. “Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew’s business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh’s perceived religion. Adarsh’s termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.”

Thus Title VII – and its state counterparts, including California’s Fair Employment and Housing Act (FEHA) – in effect direct employers facing such adverse economic impact from customer prejudices to either educate its patrons sufficiently to overcome their fears or hatreds against any particular religion or to forego such customer business.

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

May 21, 2014

Related articles:

● “New CA Labor Laws 2013: Religious Dress and Grooming and Employers’ Increased Duties to Accommodate”

● “Prayer Meetings in the Workplace”

● “Accommodating Religion in the Workplace”

● “What’s God Got to Do With It?”

● “Religion in the Workplace, Have Faith in the Law”

● “Reverse Discrimination”

Companies Must Uphold Worker Rights to Religious Garb or Grooming Even if It Means Losing Business

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the federal laws prohibiting discrimination in commerce, including the Civil Rights Act of 1964, nicknamed “Title VII.” In the wake of the September 11 attacks, the EEOC has fielded a dramatic increase in religious discrimination complaints, 3,721 in fiscal 2013, well more than double the 1,709 charges received in fiscal 1997. This increasing volume has recently prompted the agency to publish a guide to help employers understand their obligations under this law, “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.”

The EEOC offers several examples of religious dress and grooming practices including “wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”

Title VII defines religion very broadly, including “not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.” An employee’s belief or practice can also be “religious” under Title VII “even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.”

Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.

It is not necessarily an employer’s discretion to determine just what sort of hardship is sufficient to absolve it from complying with the law. As has been the critical role of the Civil Rights Act since its creation 50 years ago, the EEOC emphasizes that customer preference – and the potential for loss of business out of customer prejudices against one religion or another – cannot amount to a business’s claimed undue hardship by definition. Just a company’s concern over public bigotry and backlash from employing a member of a racial minority is never justification for refusing to hire that person, similar concern over public reaction to particular religious garb is irrelevant.

The EEOC offers a striking example. “Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew’s business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh’s perceived religion. Adarsh’s termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.”

Thus Title VII – and its state counterparts, including California’s Fair Employment and Housing Act (FEHA) – in effect direct employers facing such adverse economic impact from customer prejudices to either educate its patrons sufficiently to overcome their fears or hatreds against any particular religion or to forego such customer business.

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

May 21, 2014

Related articles:

● “New CA Labor Laws 2013: Religious Dress and Grooming and Employers’ Increased Duties to Accommodate”

● “Prayer Meetings in the Workplace”

● “Accommodating Religion in the Workplace”

● “What’s God Got to Do With It?”

● “Religion in the Workplace, Have Faith in the Law”

● “Reverse Discrimination”

When In Doubt, Choose Contracts Over Lunch

In a 1990 copyright decision over a sci-fi flick featuring alien frozen yogurt enslaving the human race (yes, that is correct), federal Ninth Circuit Court of Appeals Judge Alex Kozinski noted that the producer defendant — a “low-budget horror movie mogul” – justified his attempt to use another’s special effects footage without written permission because “moviemakers do lunch, not contracts.” Rejecting the position, Judge Kozinski helpfully observed: “Common sense tells us that agreements should routinely be put in writing. This simple practice prevents misunderstandings by spelling out the terms of a deal in black and white, forces parties to clarify their thinking and consider problems that could potentially arise, and encourages them to take their promises seriously because it’s harder to backtrack on a written contract than on an oral one.” Effects Associates, Inc. v. Larry Cohen, et al., (1990) 908 F.2d 555.

Judge Kozinski earlier this year issued a highly controversial decision in another copyright case – this time over an actor’s attempt to have footage removed from YouTube, a Google company. Garcia v. Google, (2014) 743 F.3d 1258. Once again, the lack of a written contract played a part in the decision.

The film this time was the anti-Islamic Innocence of Muslims, which our government had initially claimed was the impetus for the fatal September, 2012 attack on the U.S. consulate in Benghazi, Libya. While this allegation was later shown to be untrue, Innocence of Muslims did prompt death threats against all involved in its production because it posed the profane question, “Is your Mohammed a child molester?” Actor Cindy Lee Garcia, who had played the character who supposedly uttered that line, was one of those targeted.

Garcia, who had spent three days on set and was paid $500, claimed she actually never said those words and had no idea she was going to be in an incendiary film that could easily lead to riots and death threats. Garcia contended the producer lied, claiming she was performing in “Desert Warrior” — an adventure film purportedly set in ancient Arabia. She asserted the script did not contain the offensive words but were later dubbed in without her permission or knowledge for the final film.

After the death threats forced her to move her home and business and engage in other security measures to protect her safety, Garcia attempted eight times to get Google to remove the film from YouTube to no avail. She then filed for an injunction in federal court, claiming she owned the copyright in her own performance and that Google was required on her demand to take the video down. Although the trial court judge disagreed, on appeal Judge Kozinski, now Chief Judge of the Ninth Circuit, awarded Garcia that injunction.

While Judge Kozinski’s decision will almost certainly not be the last word, it is potentially monumental, the first time a court has ruled that an individual actor with a minor film role has a copyright in her own performance. This in turn gave Garcia the power to require any alleged copyright infringers – in this case Google and YouTube — to refrain from showing that film.

Typically, when a movie is made, the producer has all actors, and certainly the minor ones, sign a contract to ensure that they give up any rights they might possibly claim to ownership of any copyright connected with the production. In the usual industry practice, producers hire the actors as employees, in which case their contributions to the film are deemed “works made for hire” under U.S. Copyright law. If, on the other hand, a production hires actors as independent contractors, they will typically sign away (assign to the production company) any rights they may have in their performance. Here the court found that the producer did not obtain any such written agreement. Although Google submitted an agreement that Garcia had supposedly signed, Garcia claimed it was a forgery.

An authentic, adequately worded written agreement taking all such copyright rights away from Garcia would have almost certainly left the producers, as well as Google and YouTube, with the discretion of showing the Innocence of Muslims film however and whenever they chose. Yet, for moviemakers inattentive enough to mistakenly presume a handshake over lunch is just as good as a written contract, the potential ramifications of that decision are virtually limitless, turning discretion over to the actors to impose their control over a film’s content, distribution and marketing.

A producer’s or director’s artistic vision can play a critical role – for better or worse – in the collective cultural life of our world, but only if the legal details are confirmed in writing. Maintaining that role requires contracts with each participant in a film that acknowledges who owns all copyrights, whether as a work made for hire, by assignment, or, ideally both. Such agreements should also always ensure that assignment includes all moral rights, or “droit moral” – rights to control the artistic use of a creative contribution. It should also go without saying that such agreements should honestly portray the production to which the actors are contributing.

For more information on this subject, contact the firm’s Of Counsel attorney, Helena Kobrin.

May 14, 2014

When In Doubt, Choose Contracts Over Lunch

In a 1990 copyright decision over a sci-fi flick featuring alien frozen yogurt enslaving the human race (yes, that is correct), federal Ninth Circuit Court of Appeals Judge Alex Kozinski noted that the producer defendant — a “low-budget horror movie mogul” – justified his attempt to use another’s special effects footage without written permission because “moviemakers do lunch, not contracts.” Rejecting the position, Judge Kozinski helpfully observed: “Common sense tells us that agreements should routinely be put in writing. This simple practice prevents misunderstandings by spelling out the terms of a deal in black and white, forces parties to clarify their thinking and consider problems that could potentially arise, and encourages them to take their promises seriously because it’s harder to backtrack on a written contract than on an oral one.” Effects Associates, Inc. v. Larry Cohen, et al., (1990) 908 F.2d 555.

Judge Kozinski earlier this year issued a highly controversial decision in another copyright case – this time over an actor’s attempt to have footage removed from YouTube, a Google company. Garcia v. Google, (2014) 743 F.3d 1258. Once again, the lack of a written contract played a part in the decision.

The film this time was the anti-Islamic Innocence of Muslims, which our government had initially claimed was the impetus for the fatal September, 2012 attack on the U.S. consulate in Benghazi, Libya. While this allegation was later shown to be untrue, Innocence of Muslims did prompt death threats against all involved in its production because it posed the profane question, “Is your Mohammed a child molester?” Actor Cindy Lee Garcia, who had played the character who supposedly uttered that line, was one of those targeted.

Garcia, who had spent three days on set and was paid $500, claimed she actually never said those words and had no idea she was going to be in an incendiary film that could easily lead to riots and death threats. Garcia contended the producer lied, claiming she was performing in “Desert Warrior” — an adventure film purportedly set in ancient Arabia. She asserted the script did not contain the offensive words but were later dubbed in without her permission or knowledge for the final film.

After the death threats forced her to move her home and business and engage in other security measures to protect her safety, Garcia attempted eight times to get Google to remove the film from YouTube to no avail. She then filed for an injunction in federal court, claiming she owned the copyright in her own performance and that Google was required on her demand to take the video down. Although the trial court judge disagreed, on appeal Judge Kozinski, now Chief Judge of the Ninth Circuit, awarded Garcia that injunction.

While Judge Kozinski’s decision will almost certainly not be the last word, it is potentially monumental, the first time a court has ruled that an individual actor with a minor film role has a copyright in her own performance. This in turn gave Garcia the power to require any alleged copyright infringers – in this case Google and YouTube — to refrain from showing that film.

Typically, when a movie is made, the producer has all actors, and certainly the minor ones, sign a contract to ensure that they give up any rights they might possibly claim to ownership of any copyright connected with the production. In the usual industry practice, producers hire the actors as employees, in which case their contributions to the film are deemed “works made for hire” under U.S. Copyright law. If, on the other hand, a production hires actors as independent contractors, they will typically sign away (assign to the production company) any rights they may have in their performance. Here the court found that the producer did not obtain any such written agreement. Although Google submitted an agreement that Garcia had supposedly signed, Garcia claimed it was a forgery.

An authentic, adequately worded written agreement taking all such copyright rights away from Garcia would have almost certainly left the producers, as well as Google and YouTube, with the discretion of showing the Innocence of Muslims film however and whenever they chose. Yet, for moviemakers inattentive enough to mistakenly presume a handshake over lunch is just as good as a written contract, the potential ramifications of that decision are virtually limitless, turning discretion over to the actors to impose their control over a film’s content, distribution and marketing.

A producer’s or director’s artistic vision can play a critical role – for better or worse – in the collective cultural life of our world, but only if the legal details are confirmed in writing. Maintaining that role requires contracts with each participant in a film that acknowledges who owns all copyrights, whether as a work made for hire, by assignment, or, ideally both. Such agreements should also always ensure that assignment includes all moral rights, or “droit moral” – rights to control the artistic use of a creative contribution. It should also go without saying that such agreements should honestly portray the production to which the actors are contributing.

For more information on this subject, contact the firm’s Of Counsel attorney, Helena Kobrin.

May 14, 2014

U.S. Supreme Court Turns to History and Webster’s Dictionary to Defeat a Class Action Against U.S. Steel

A minimal underpayment of wages to a single worker can morph into a claim potentially worth millions if magnified across a “class” of many workers subject to the same alleged employment practices. Targeting larger employers, such “class action” suits have become big business in the courts across the United States, including California.

The success or failure of such a massive claim against United States Steel Corporation fell on the Supreme Court’s chosen definition of the term “changing clothes.” Sandifer, et al. v. United States Steel Corp. 200 United States Reports (U.S.) 310, 134 Supreme Court Reporter (S.Ct.) 870, decided January 27, 2014.

The issue was whether the safety gear employer U.S. Steel required workers to wear in its plants – including flame retardant jacket, protective pants, gloves and hard hat — was actually “clothing” or not. Since their union had made an agreement with the company that time workers spent “changing clothes” at the beginning and end of the day would not be compensated, the employees who brought the suit claimed such protective gear was not “clothing” because these items were largely donned over garments worn for decency. Utilizing Webster’s New International Dictionary of the English Language (2^nd edition, 1950) (Webster’s Second), the Court broadly defined “clothing” and related terms in favor of employer U.S. Steel, defeating the lawsuit.

U.S. Employment Law History: The case’s outcome required an examination of the history of employment law – and the tensions between organized labor and management — in the United States. Toward the end of the Great Depression, Congress created the Fair Labor Standards Act (1938) (FLSA), governing minimum wages for the majority of employees nationwide. The Supreme Court has traditionally interpreted the reach of the FLSA broadly, for example finding that compensable work time includes “all time spent during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace” and that such time includes “preliminary activities after arriving … such as putting on aprons and overalls [and] removing shirts.”

Businesses pushed back in the later 1940s. Organized labor had used the Court’s expansive application of the FLSA to bring “portal” lawsuits for industry to compensate employees for time putting on and taking off work-related gear (“portals” being the entrances to mines). Yet, industry convinced Congress and President Truman that such broad application violated “long-established customs, practices, and contracts between employers and employees.” The Portal-to-Portal Act of 1947 thus excluded from mandatorily compensable time “activities which are preliminary to or postliminary to [a worker’s] principal activity or activities …”

The struggle continued. The Labor Department promptly claimed the Portal-to-Portal Act would not apply to (and thus companies would have to pay wages for) time “changing clothes” and “washing up and showering” if those activities were so directly related to the specific work of an employee that they were an “integral part of that employee’s principal activity.” In response, Congress amended the FLSA in 1949 to permit industry and labor to exclude “changing clothes” or “washing” from compensable work time through the terms or customs and practices encompassed by written collective bargaining agreements. 29 United States Code [U.S.C.] section 203(o).

When several workers brought this suit on behalf of some 800 current and former employees, U.S. Steel and the steelworkers union had maintained an agreement excluding “changing clothes” from compensable work time for some 50 years, since 1947.

Definition of “Clothes”: The employees in this case sought to define “clothes” as excluding items designed and used to protect against workplace hazards, citing a Webster’s definition that limited clothes to items worn for “decency or comfort.” Observing there is no meaningful distinction between items worn for protection or those worn for comfort, the Court in any event choose to apply another, broader definition of “clothes” from the same dictionary, items intended to cover some part of the human body or just plain “wearing apparel.”

Definition of “Changing”: Again, the employees attempted to use a Webster’s definition that suited their purposes, arguing that “changing clothes” only means substituting one article for another. They thus asserted that since protective gear went over a worker’s street clothes, a person wasn’t really changing into them. The Court again disagreed, using another Webster’s definition for “changing” that embraces two concepts, substituting and altering. Thus, to the Court, donning or doffing protective gear is within the definition of “changing clothes” as the items cover the body and, when worn, alter the person’s overall dress.

Outcome, the Art of a Supreme Court Decision: Wading into the 12 specific items of protective gear involved in this case, the Court found nine of them were “designed and used to cover the body and are commonly regarded as articles of dress” (including the jacket, pants, hood and hardhat). However, the Court found that three of them – safety glasses, earplugs and a respirator — were not clothing, i.e., “articles of dress.”

This of course created the potential that courts would now have to determine how many minutes were spent putting or taking off the nine items (non-compensable) and how many were spent putting on or removing the other three (compensable). To avoid the need for such judicial micromanagement, the Court artfully punted, ruling that if the changing time involving all 12 items is mostly spent with the nine articles of clothing, then the entire period should be regarded as changing clothes.

While this decision concerned a single workplace practice and whether it was covered in a specific union contract, it does illustrate the great stakes that are involved when a company allegedly makes “little” errors that affect a large number of employees. Such situations can grow into class action claims on a scale that could place a business out of business. Thus, careful and continuing management attention to the details of employer timekeeping, rest and meal break periods, wage calculations and a host of other workplace procedures is essential.

Please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin for assistance on such critical matters.

May 9, 2014

U.S. Supreme Court Turns to History and Webster’s Dictionary to Defeat a Class Action Against U.S. Steel

A minimal underpayment of wages to a single worker can morph into a claim potentially worth millions if magnified across a “class” of many workers subject to the same alleged employment practices. Targeting larger employers, such “class action” suits have become big business in the courts across the United States, including California.

The success or failure of such a massive claim against United States Steel Corporation fell on the Supreme Court’s chosen definition of the term “changing clothes.” Sandifer, et al. v. United States Steel Corp. 200 United States Reports (U.S.) 310, 134 Supreme Court Reporter (S.Ct.) 870, decided January 27, 2014.

The issue was whether the safety gear employer U.S. Steel required workers to wear in its plants – including flame retardant jacket, protective pants, gloves and hard hat — was actually “clothing” or not. Since their union had made an agreement with the company that time workers spent “changing clothes” at the beginning and end of the day would not be compensated, the employees who brought the suit claimed such protective gear was not “clothing” because these items were largely donned over garments worn for decency. Utilizing Webster’s New International Dictionary of the English Language (2^nd edition, 1950) (Webster’s Second), the Court broadly defined “clothing” and related terms in favor of employer U.S. Steel, defeating the lawsuit.

U.S. Employment Law History: The case’s outcome required an examination of the history of employment law – and the tensions between organized labor and management — in the United States. Toward the end of the Great Depression, Congress created the Fair Labor Standards Act (1938) (FLSA), governing minimum wages for the majority of employees nationwide. The Supreme Court has traditionally interpreted the reach of the FLSA broadly, for example finding that compensable work time includes “all time spent during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace” and that such time includes “preliminary activities after arriving … such as putting on aprons and overalls [and] removing shirts.”

Businesses pushed back in the later 1940s. Organized labor had used the Court’s expansive application of the FLSA to bring “portal” lawsuits for industry to compensate employees for time putting on and taking off work-related gear (“portals” being the entrances to mines). Yet, industry convinced Congress and President Truman that such broad application violated “long-established customs, practices, and contracts between employers and employees.” The Portal-to-Portal Act of 1947 thus excluded from mandatorily compensable time “activities which are preliminary to or postliminary to [a worker’s] principal activity or activities …”

The struggle continued. The Labor Department promptly claimed the Portal-to-Portal Act would not apply to (and thus companies would have to pay wages for) time “changing clothes” and “washing up and showering” if those activities were so directly related to the specific work of an employee that they were an “integral part of that employee’s principal activity.” In response, Congress amended the FLSA in 1949 to permit industry and labor to exclude “changing clothes” or “washing” from compensable work time through the terms or customs and practices encompassed by written collective bargaining agreements. 29 United States Code [U.S.C.] section 203(o).

When several workers brought this suit on behalf of some 800 current and former employees, U.S. Steel and the steelworkers union had maintained an agreement excluding “changing clothes” from compensable work time for some 50 years, since 1947.

Definition of “Clothes”: The employees in this case sought to define “clothes” as excluding items designed and used to protect against workplace hazards, citing a Webster’s definition that limited clothes to items worn for “decency or comfort.” Observing there is no meaningful distinction between items worn for protection or those worn for comfort, the Court in any event choose to apply another, broader definition of “clothes” from the same dictionary, items intended to cover some part of the human body or just plain “wearing apparel.”

Definition of “Changing”: Again, the employees attempted to use a Webster’s definition that suited their purposes, arguing that “changing clothes” only means substituting one article for another. They thus asserted that since protective gear went over a worker’s street clothes, a person wasn’t really changing into them. The Court again disagreed, using another Webster’s definition for “changing” that embraces two concepts, substituting and altering. Thus, to the Court, donning or doffing protective gear is within the definition of “changing clothes” as the items cover the body and, when worn, alter the person’s overall dress.

Outcome, the Art of a Supreme Court Decision: Wading into the 12 specific items of protective gear involved in this case, the Court found nine of them were “designed and used to cover the body and are commonly regarded as articles of dress” (including the jacket, pants, hood and hardhat). However, the Court found that three of them – safety glasses, earplugs and a respirator — were not clothing, i.e., “articles of dress.”

This of course created the potential that courts would now have to determine how many minutes were spent putting or taking off the nine items (non-compensable) and how many were spent putting on or removing the other three (compensable). To avoid the need for such judicial micromanagement, the Court artfully punted, ruling that if the changing time involving all 12 items is mostly spent with the nine articles of clothing, then the entire period should be regarded as changing clothes.

While this decision concerned a single workplace practice and whether it was covered in a specific union contract, it does illustrate the great stakes that are involved when a company allegedly makes “little” errors that affect a large number of employees. Such situations can grow into class action claims on a scale that could place a business out of business. Thus, careful and continuing management attention to the details of employer timekeeping, rest and meal break periods, wage calculations and a host of other workplace procedures is essential.

Please contact attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin for assistance on such critical matters.

May 9, 2014

Effective April 18, 2014, the Equal Employment Opportunity Commission (EEOC) doubled the penalty for an employer’s failure to post that agency’s “Equal Employment Opportunity is the Law” notice, from $110 to $210 per violation.See, 29 Code of Federal Regulations (CFR) section 1601.30(b).

The required notice includes the basics for:

The 1964 Civil Rights Act (Title VII) (prohibits employment discrimination based on a protected class including race, color, religion, sex [including pregnancy] and national origin);

The Americans with Disabilities Act (ADA) (prohibits workplace disability discrimination); and

The Genetic Information Non-Discrimination Act (GINA) (prohibits workplace discrimination based on genetic information).

Covered employers include all private companies employing at least 15 individuals and all federal contractors and subcontractors. The notice must be posted prominently for viewing by employees and job applicants, e.g., personnel office, lunchroom or company bulletin board.

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

Effective April 18, 2014, the Equal Employment Opportunity Commission (EEOC) doubled the penalty for an employer’s failure to post that agency’s “Equal Employment Opportunity is the Law” notice, from $110 to $210 per violation.See, 29 Code of Federal Regulations (CFR) section 1601.30(b).

The required notice includes the basics for:

The 1964 Civil Rights Act (Title VII) (prohibits employment discrimination based on a protected class including race, color, religion, sex [including pregnancy] and national origin);

The Americans with Disabilities Act (ADA) (prohibits workplace disability discrimination); and

The Genetic Information Non-Discrimination Act (GINA) (prohibits workplace discrimination based on genetic information).

Covered employers include all private companies employing at least 15 individuals and all federal contractors and subcontractors. The notice must be posted prominently for viewing by employees and job applicants, e.g., personnel office, lunchroom or company bulletin board.

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

California Employers’ Obligations to Accommodate May Not End After Providing the Required Four Month Leave

A recent California Court of Appeal case – Sanchez v. Swissport, Inc. (February 21, 2014), 213 California Appellate Reporter, fourth series (Cal.App.4th) 1331 – confirms that employers must comply with both the Pregnancy Disability Leave Law (PDLL) law and the wider protections for women disabled due to pregnancy under in the Fair Employment and Housing Act (FEHA).

The PDLL requires any employer with four or more persons on payroll to provide a worker up to four months of unpaid leave for her pregnancy, delivery and newborn care. Pregnant employees have those rights even if they must go out on such leave within days of taking on new employment. These protections extend to full time and part-time workers alike.

The FEHA also requires any employer with four or more employees to provide disabled individuals equal employment opportunity if such persons are able to perform the essential functions of the job position in question with reasonable accommodation as necessary. However, an employer is not required to accommodate such a worker if such action would create undue hardship on that company’s operations. For example, a business may decline to hire a blind person for a truck driving position (since accommodation would be too burdensome on the company) but likely may not decline to hire a qualified computer programmer because he or she cannot walk (since accommodation for sitting at a terminal is probably a simple, inexpensive matter).

In the above case, Ana Sanchez alleged Swissport employed her for some two years (mid-2007 to mid-2009). In early 2009, she requested and received a temporary leave for medically required time away on her high-risk pregnancy. While she then had to be away from the job until that October to give birth and attend to newborn care – obviously more than four months later — Ms. Sanchez alleged that “very soon after she was scheduled to give birth, she would have returned to work, with the need for only minimal accommodations, if any, in order to perform the essential function[s] of her job.” 213 Cal.App.4th at 1334-1335.

Ms. Sanchez claimed that Swissport nevertheless terminated her in July on the company’s contention it had no further obligation to accommodate her once she had been absent for the four months under the PDLL. Ms. Sanchez also asserted that prior to her termination, Swissport never contacted her “to engage her in a timely, good faith interactive process in order to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed.” Finally, she alleged that “the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship upon [Swissport], nor would said accommodations have adversely impacted, in any way, the operation of [its] business.” 213 Cal.App.4th at 1335.

Swissport convinced the trial judge to dismiss the case, on its claim that its obligations to accommodate Ms. Sanchez’s pregnancy ended after it provided the four month leave. The California Court of Appeal disagreed and allowed Ms. Sanchez to continue her suit. An employer’s compliance with PDLL does not fulfill its obligations to comply with the wider disability protections under the FEHA. “We conclude that … the plain language of the PDLL … makes clear that its remedies augment, rather than supplant, those set forth elsewhere in the FEHA. By its terms, the PDLL provides that its remedies are ‘in addition to’ those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA.” 213 Cal.App.4th at 1338.

This decision underscores the importance of employer’s open and constructive communication with any worker seeking time away from the job due to pregnancy, child birth or newborn care. It is a business’s obligation to ensure it seeks to understand and reasonably accommodate such conditions short of undue hardship to its operations. This is particularly critical in instances where an employee is requesting such accommodations after she has expended her maximum four month time away under the PDLL.

Please contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin for assistance in this highly sensitive area of employee relations.