Employment Law Briefing 2016 - DLA Piper/media/Files/Insights/Events/2016/01/elb… · Train HR,...

Employment Law Briefing 2016

Introduction and welcome

Roadmap

I. Paying your workforceA. Independent contractors

B. What is compensable time?

C. Fair pay act

II. Wage and hour update/class action overview

III. Joint employment

IV. National labor relations board developments

V. Protecting your IP in a mobile world

VI. Other key CA legislation

3Employment Law Briefing 2016

Paying your workforce

Paying your workforce

1. Independent contractors

2. What is compensable time?

3. Fair Pay Act


Classification of independent contractors

Independent contractor misclassification

• July 15, 2015 – DOL issued interpretive memorandum on IC misclassification

• Employ = “to suffer or permit to work”

• Evaluated the “economic realities” test – focus on whether the worker is economically dependent on an employer

• This test should be applied in view of FLSA’s broad definition of employer

• Is the work integral to employer’s business?• Does worker’s skill affect profit or loss?• Worker’s investment/risk vs. company’s investment/risk?• Does work require special skill or initiative?• Is the working relationship permanent or indefinite? • Nature and degree of employer’s control? Does the worker have

meaningful control over his/her “business”?



• EXAMPLE:

A registered nurse who provides skilled nursing care in nursing homes is listed with Beta Nurse Registry in order to be matched with clients. The registry interviewed the nurse prior to her joining the registry, and also required the nurse to undergo a multi-day training presented by Beta. Beta sends the nurse a listing each week with potential clients and requires the nurse to fill out a form with Beta prior to contacting any clients. Beta also requires that the nurse adhere to a certain wage range and the nurse cannot provide care during any weekend hours. The nurse must inform Beta if she is hired by a client and must contact Beta if she will miss scheduled work with any client.



• EXAMPLE:

Another registered nurse who provides skilled nursing care in nursing homes is listed with Jones Nurse Registry in order to be matched with clients. The registry sends the nurse a listing each week with potential clients. The nurse is free to call as many or as few potential clients as she wishes and to work for as many or as few as she wishes; the nurse also negotiates her own wage rate and schedule with the client.


Key independent contractor cases

Villalpando v. Exel Direct Inc. (United States District Court, N.D. California – September 3, 2015) Delivery drivers alleged misclassification as independent

contractors

The primary concern was whether the person to whom the service is rendered has the right to control the manner and means of accomplishing the result desired

Facts that supported the employer’s right of control included: (1) the employer’s right to terminate drivers without cause with 60 days’

notice; (2) both drivers and their trucks must meet the employer’s appearance requirements; (3) the employer engaged in extensive training of its drivers; (4) the drivers’ ability to hire second helpers and operate more than one truck was not inconsistent

Court found right to control even though employer did not set specific working hours

2015 Mid-Year Employment Law Briefing 10

11

Uber, Lyft, FedEx

• Recent independent contractor cases show this is an issue for both the new and old economies

• FedEx paid $228 million to settle an independent contractor misclassification class action. The settlement follows a 2014 Ninth Circuit ruling that drivers were misclassified

• Two separate class actions have been brought on behalf of Lyft and Uber drivers, alleging misclassification. Summary judgment was denied in both cases. Numerous related motions are pending

• In all these situations, the cases are very fact-specific

• The focus is on who controls the means and manner of work


What is compensable time?

The FLSA and the mobile workforce

DOL plans to issue a Request for Information (RFI) to learn about: Employee use of electronic devices to perform work outside of regularly

scheduled work hours and away from the workplace, and

Last minute scheduling practices that are made possible in large part by employees’ use of these [mobile] devices

The agency plans to issue the RFI in February 2016

Be careful of de minimis time Checking emails is often termed de minimis

True de minimis is a few seconds or minutes outside of the workday

Refer to Chicago police case/7th Cir. re overtime for checking email


What time is compensable varies based on where you sit

Federal law was clarified by the integrity staffing (Amazon) case Security screenings were not integral and indispensable to employees’

duties as warehouse workers, and accordingly time spent in lines to leave was not compensable

But California law is different LoJack case makes clear that standard is much more employee

friendly in California In California time is compensable if it is subject to the control of the

employer – a substantially different standard


California Fair Pay Act


Same pay rates “for substantially similar work”

Composite of equal skill, effort, responsibility under similar working conditions

Not confined to same physical location; viewed across the entire enterprise

Bona fide factors other than sex applied reasonably and account for entire wage difference



Except where differences are caused by:

Seniority system

Merit system

System measuring output quantity and quality of work

A bona fide factor other than sex, e.g., education, training or

experience


Provisions of Fair Pay Act

Must maintain records of wages and wage rates, job classifications, and other terms and conditions of employment of all employees for 3 years

Cannot prohibit employees from discussing their own wages or inquiring about another employee’s wages

Cannot retaliate or take any adverse action for exercising rights


Provisions of Fair Pay Act

Damages incentivize lawsuitsPotential damages include: Balance of wages owed

Interest

Liquidated damages of equal amount

Attorneys fees and costs of suit

Fair Pay Act violations can become PAGA claims

This is likely to be the next major wave of class action litigation


5 Strategies and best practices

1. Conduct an audit: Review all job classifications and identify female-and-male-

dominated job classifications

Determine whether composite of skill, effort and responsibility is reasonably applied

2. Understand and document reasons for pay disparity:

Demonstrate bona fide reasons for disparity, e.g., skill, effort, responsibility, working conditions, seniority, merit, quantity or quality of work, more expensive geography, education, training, other legitimate reason not based on gender


Strategies and best practices

3. Maintain compensation records: Reasonably apply composite of skill, effort and responsibility,

working conditions and other bona fide factors not based on gender

4. Update EE handbook and policies: Do not impose silence policy about compensation

Employees can discuss together or ask about job compensation

5. Train HR, recruiters, managers


Wage and hour update/ class action overview

Employment Law Briefing 2016 23

Wage and hour in 2015

• The number of new wage-and-hour suits in federal courts hit an all-time high last year, up about 8% over the previous year

• According to Federal Judicial Center, 8,781 federal wage-and-hour suits were filed in the federal government’s fiscal year ending Sept. 30, 2015

• Recent growth stems from overtime and minimum wage policy debates around the country, which has increased worker awareness

• Monetary value of employment-related class action settlements reached an all-time high in 2015 – top ten settlements in various employment-related categories totaled $2.48 billion over the past year as compared to $1.87 billion in 2014

• More class certifications than ever before

24Source: 12th Annual Workplace Class Action Report, Seyfarth Shaw

Notable cases from 2015

In the past it has been substantially easier for employers to enforce choice of venue provisions rather than choice of law provisions

Here, the court disallowed Texas forum selection clause in an overtime case

Plaintiff’s rights under California law would be substantially diminished if required to pursue her claims in Texas

Even if forum selection clause holds, court can still choose to apply California law, as the Delaware Chancery Court did here

This was a non-compete case, meaning it has potentially greater impact than Verdugo

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Verdugo v. Alliantgroup187 Cal. Rptr. 3d. 613 (Cal. Ct. App. 2015)

Ascension Ins. Holdings, LLC v. Underwood C.A. No. 9897-VCG, 2015 WL 356002 (Del. Ch. 2015)


Notable cases from 2015

262015 Mid-Year Employment Law Briefing

PAGA actions are still complicated

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Franco v. Arakelian Enterprises184 Cal. Rptr. 3d 501 (Cal. Ct. App. 2015)

In light of holdings that don’t allow PAGA actions to be compelled to arbitration, court directed the trial court to do the following:

Compel the wage and hour claims to arbitration

Enforce class action waiver

But keep PAGA action with trial court, stayed pending resolution of the arbitration

So after arbitration concludes, plaintiffs can still get a second bite at the apple by litigating pure PAGA claims

But see Securitas Security Services v. Superior Court184 Cal. Rptr. 3d. 568 (Cal. Ct. App. 2015)

• Waiver of ability to bring PAGA representative action was not severable from the remainder of the agreement, meaning the entire arbitration agreement was unenforceable


Some good news on PAGA (until the supreme court took it away)

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Williams v. Superior CourtWilliams v. Superior Court, 187 Cal. Rptr. 3d 321, review granted, 191 Cal. Rptr. 3d 497 (2015)

PAGA has always been the Wild West of employment law – with no clear guidance on the parameters of discovery or identification of who are “aggrieved” parties, costs can increase quickly.

The California Supreme Court on grant of review will decide:

Is the plaintiff in a PAGA action entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding, or is the plaintiff first required to show good cause in order to have access to such information?

In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed?


Joint employment

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Re-expanding definition of employer

Expanded definition of “Employer”

Contractor

Subcontractor

Employees

Employers at the top of the pyramid are open to joint employer exposure


Employment Law Briefing 2016 31

Q: Are you a joint employer?DOL: Yes!

The DOL has rejected the common law control test for employment and seems to adopt the position that merely doing business with another entity may be sufficient to establish joint employment

Two types of joint employment − horizontal and vertical:

DOL issues guidance – 1/20/16

• Horizontal joint employment – “where two (or more) employers each separately employ an employee and are sufficiently associated with or related to each other with respect to the employee.”

• Vertical joint employment – “where the employee has an employment relationship with one employer … and the economic realities show that he or she is economically dependent on, and thus employed by, another entity involved in the work.”

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The EEOC’s joint employer test

The term "joint employer" refers to two or more employers that are unrelated or that are not sufficiently related to qualify as an integrated enterprise, but that each exercise sufficient control of an individual to qualify as his/her employer. The "joint employer" issue frequently arises in cases involving temporary staffing agencies. A charge must be filed against each employer to pursue a claim against that employer


California gets in on the act –Labor Code 2810.3

“Labor contractor” definition: “An individual or entity that supplies, either with or without a contract, a client employer with workers to perform labor within the client employer’s usual course of business”

Exemptions from “labor contractor” definition: Nonprofits: “A bona fide nonprofit, community-based organization that

provides services to workers” Union hiring halls and apprenticeship programs: “A bona fide labor

organization or apprenticeship program or hiring hall operated pursuant to a collective bargaining agreement” “Motion picture” payroll services companies If employer has assumed liability: An “employee leasing arrangement

[which] contractually obligates the client employer to assume all civil legal responsibility and civil liability under this act” Other exemptions: Homeowners, employers contracting with delivery

services, cable operators, auto clubs contracting with two truck operators


Key joint employer case

Co- or joint employers can be liable for willful misclassification of employees as an independent contractor when the co-employer knew about the misclassification and failed to remedy it

Noe v. Superior Court187 Cal. Rptr. 3d 836 (Cal. Ct. App. 2015)


NLRB developments for non-union employers

NLRB stays in the spotlight

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“There’s no such thing as bad publicity.” -P. T. Barnum


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What’s at stake? • Profitable, efficient operations

• Monetary remedies

• Invalidation of critical policies (e.g., confidentiality, arbitration)

• Customer relations

• Public image

• Spinoff litigation and regulatory investigations (meal and rest break class actions, OSHA inspections, building permit interference)

Unfair labor charges


The NLRB primes the pump

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Maybe I should call it the National Labor Relations App?


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Developments

Fundamental shifts (according to the NLRB) in…

Who is an employer • New standard for determining a company is a “joint

employer”: unexercised and indirect control over terms and conditions of employment can now be sufficient. Browning-Ferris Industries of California, Inc., 362 N.L.R.B. 186 (2015)

• Shifts in the definition of who is an “employee” are also on the horizon. For now, at least college football players are not employees. Northwestern Univ., 362 N.L.R.B. 167 (2015)


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Developments


Who is in charge?• Classic insubordination and misconduct reimagined as

“protected” Section 7 activity

• Employees gain a presumed right to conduct recorded surveillance at work. Whole Foods Market, Inc., 363 N.L.R.B. 87 (2015)

• Employees, if given email access, have a right to use it for engaging in union organizing, griping about management, etc. Purple Communications, Inc., 361 N.L.R.B. 126 (2014)


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Developments


What is prohibited?• The NLRB continues to invalidate arbitration

agreements waiving class actions despite being repeatedly overturned by the US Courts of Appeal

• “Blanket” confidentiality impermissible during workplace investigations. American Baptist Homes of the West, 362 N.L.R.B. 139 (2015); Banner Health System, 362 N.L.R.B. 137 (2015).


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Ambush elections

Since April 14, 2015, employers have faced unprecedented, lightning-quick elections under new regulations• Elections can be held in as few as 13 days from

the point a petition is filed• Strict waiver of arguments not asserted during

short briefing timeline (e.g., supervisory status)

• Election petitions can be signed and filed electronically

• Employers must produce all employee names, work locations, shifts, job classifications, addresses, cell phone numbers, and personal email addresses on file


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Gear up for 2016

CHECKLIST Develop a plan with counsel for responding to an “ambush election” and accompanying smear campaign

Educate front-line managers on NLRB risks and instruct them to keep ears and eyes open

Tighten up policies and arbitration agreements to (1) withstand NLRB scrutiny (balanced against business need), and/or (2) win on appeal in the courts


Protecting your IP in a mobile world

Protecting your assets at the front door: agreements with new employees

Confidentiality and non-disclosure agreements, including limits on information shared on social media

Restrictive covenants (limited utility in CA)−Non-competition and non-solicitation

−Activity covenants (restrictions on specific contacts)

Written acknowledgement of policies regarding use and monitoring of email, computers and mobile devices

BYOD policies are essential


Confidentiality agreement

In most jurisdictions, continued employment is sufficient consideration

Defines customers, customer contacts, similar compilations as “confidential Information”

Employer owns confidential Information

−Labor Code section 2860

−Morlife, Inc. v. Perry, 66 Cal. Rptr. 2d 731 (Cal. Ct. App. 1997)


Can storing data in the cloud undermine trade secret protections?

Under Uniform Trade Secrets Act, trade secrets must be:1. Maintained in confidence

2. Have commercial value from not being generally known

3. Must not be readily ascertainable by proper meansNote: California did NOT adopt the third prong

Risk areas:1. LinkedIn – Customer lists in the public domain?

2. Sasqua Group, Inc. v. Cartney, No. CV 10-528, 2010 WL 36138855 (EDNY, August 2, 2010)

− Customer information not a trade secret where publicly available information “exceeded the amount and level of detail contained in the Sasqua database”

− Sasqua did not have password protected computers; did not require employee to sign confidentiality or non-solicitation agreement

3. Law still unsettled as to whether LinkedIn contacts may violate non-solicit and non-compete restrictions; will depend on nature of contact and terms of any restrictive covenants


The basics for trade secrets

Have agreements you and your employees will understand –and you will enforce

Have a signed agreement for every employee – and know where it is

Have measures that protect your property – and protect other companies’ property

Have onboarding meetings and exit interviews with checklists

Don’t have terms you will not consistently enforce


Good provisions

(b) Former employer information. I agree that I will not, during my employment with the Company, improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity

(c) Third-party information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third party


Good provisions

3. Inventions

(a) Inventions retained and licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as "Prior Inventions"), which belong to me, which relate to the Company's proposed business, products or research and development, and which arc not assigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the Company, I incorporate into a Company Product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such Prior Invention as part of or in connection with such product, process or machine

(b) Assignment of inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively referred to as "Inventions"), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of and during the period of my employment and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act


Good provisions

4. Conflicting employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.

5. Returning company documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the "Termination Certification" attached hereto as Exhibit C

6. Notification to new employer. In the event that I leave the employ of the Company, I hereby grant consent to the Company to notify my new employer about my rights and obligations under this Agreement.


CONFLICT OF INTEREST GUIDELINES

It is the policy of its subsidiaries, affiliates, successors or assigns (together, the "Company") to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations which must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.

1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Confidential Information and Invention Assignment elaborates on this principle and is a binding agreement.)

Bad provision – anything that will not likely be carried out consistently


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Social media hijacking

Protect your social media sites and define whose property is the corporate social media account:

Name the account in the

company’s name

Describe the company’s

business in the account’s profile

Directly link the account with the

company’s website and/or its other online

accounts

1 2 3

Ensure that their corporate social media accounts are being used

solely for business purposes

3


Best practices after employment

Policy regarding remote wiping and monitoring of drives and devices

Exit interview – set expectations

Obtain all passwords

Inventory what was returned

Reminder letter

Cease and desist letter

Evidence preservation demand

Litigation


Other key legislation

Legislative updates

January 1, 2016 = $10.00 per hour Cal. Lab. Code 558.1: Individual liability

AB 622: E-Verify

AB 970: Enforcement of employee claims

AB 1506: PAGA

SB 588: Judgment enforcement


Leave laws

Overview

Employee leaves of absence and providing employees with additional paid time off

Challenges of complying with California’s Sick Leave Law

Preparing for increased enforcement

Obligation to provide unpaid leave as a reasonable accommodation


Providing employees with additional paid time off

Trend: extended paid parental/family leave policies

Challenges in administration

How to draft an effective policy Eligibility: Peg eligibility requirements to date of birth/child’s

placement instead of first date of requested leave

Exhaustion of Statutory Entitlements: Require concurrent use of statutory leaves

Coordinate State Benefits: SDI & PFL.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Leave in Weeks1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CFRA

SDI

FMLA

PDL (assuming difficult pregnancy)

PFL Employment Law Briefing 2016

FMLA/CFRA/PDL compared

FMLA CFRA PDLCovered employers

50+ employees on payroll for 20 or more calendar workweeks

50+ employees 5 or more FT or PT employees

Eligible employees

• 12 months of service• 1,250 hours worked

during 12 months preceding leave date

• Facility with 50+ employees within 75 miles

• 12 months of service• 1,250 hours worked

during 12 months preceding leave date

• Facility with 50+ employees within 75 miles

Allemployees eligible

Qualifying reasons for leave

• Spouse/child/parent/employee serious health condition

• Birth, adoption or foster placement

• Military-related leave

• Spouse/child/parent/employee serious health condition

• Birth or placement of child

Disabled by pregnancy


Challenges of complying with California’s Sick Leave Law

Went into effect July 1, 2015, as amended on July 13, 2015

The basics:Must allow employee to take at least 24 hours of paid sick leave

Must allow employee to accrue at least 48 hours of paid sick leave

Must be provided to: All employees, including temporary and part-time employees Any employee that works 30+ days within a year from the

commencement of employment is entitled to paid sick days

No requirement to payout unused accruals upon separation of employment. If employee is rehired within one year of separation, unused sick leave accruals must be reinstated

Minimum time increment may be set, but it must not be less than two hours


Paid Sick Leave amendments

July 2015 (or, the joy of unclear clarifications):

Rate of pay calculationsNon-exempt employees: Prior law (90 days rolling average rate of pay) New alternative (same rate of pay as the “regular rate” for the

week; most employers will want to use this)Exempt employees: Allowed: same as calculating pay for other paid leave


What’s the easiest way to comply?

Q: Do I have to track accrual?

A: Not necessarilyUp front AccrualPros: No incremental accrual; eliminates half the

headacheCons: Perceived inequity, potential abuse for part-

time employees



Q: Do I have to track accrual?

A: Not necessarily “Unlimited” vacation has no accrual, seeming to provide a

panacea for employers dealing with all these various issues.

But think ahead:Potential for employee abuse requires strong

managementMust craft policies to make sure “unlimited” doesn’t

convert PDL, CFRA, or other unpaid leaves into paid entitlements

Unlimited PTO can be an effective tool, but careful planning is required before implementing



Q: Do I have to track use?

A: Technically, noNew amendments make clear employer does not have to

inquire on reason for use of sick leave or PTO

A: Realistically, yesMaintain evidence of complianceMitigate risk of inadvertent adverse action Interface with other leave laws

We also recommend breaking out PSL from PTO

Do not forget about local ordinances


DFEH PREGNANCY and CFRA TRENDS

Pregnancy ComplaintsYear Complaints

2014 1,181

2013 1,163

2012 886

2011 937

Source: DFEH

CFRA ComplaintsYear Complaints

2014 3,973

2013 3,789

2012 1,301

2011 798


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Government is following trend from private litigants

FMLA litigation has skyrocketed in recent years

Source: Annual Statistics of the Administrative Office of the United States Courts

67

406

987

1114

0 200 400 600 800 1000 1200

2012

2013

2014

New FMLA Cases

New FMLA Cases


Changes in landscape for pregnancy discrimination

Supreme Court: Young v. UPS burden-shifting scheme Women may be able to prove unlawful pregnancy

discrimination if the employer accommodated some workers but refused to accommodate pregnant women

Employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act (PDA) if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification

Untested by lower courts

The SCOTUS opinion did not address the ADAAA

EEOC: Edited pregnancy discrimination guidance in light of Young v. UPS

FEHA: Extensive pregnancy regulations



Even if employee’s leave is no longer covered by FMLA/CFRA/PDA/PDL, DON’T FORGET THE FEHA and the ADA

FEHA disability and ADA leave covers situations where FMLA/CFRA/PDA/PDL does not apply Qualified employee with a disability may be entitled to leave as a

reasonable accommodation under the ADA unless it would be an undue hardship on an employer

More employers are covered – Assume all California employees are disabled! Expanded the definition of “disability” Higgins-Williams v. Sutter Medical Found., 187 Cal. Rptr. 3d. 745 (Cal. Ct. App.

2015): Anxiety/stress working under a particular supervisor is not a disability Lambert. Nat’l R.R. Passenger Corp., (Cal. Ct. App. 2015): Definition of

disability is broad and does not require a specific diagnosis by a doctor; there just must be some medical issues impacting the individual


But courts are setting some boundaries in disability cases

Higgins-Williams v. Sutter Medical Found., 187 Cal. Rptr. 3d. 745 (Cal. Ct. App. 2015) Plaintiff claimed that anxiety/stress related to a particular supervisor was a

disability that must be accommodated

Court disagreed. An inability to work under a particular supervisor because of anxiety or stress related to the supervisor’s standard oversight of job performance is not a disability

Wright v. United Parcel Serv. Inc., 609 F.App’x 918 (9th Cir. 2015) Vague requirement that lifting 70 lbs was part of the job was not enough

for this to be an essential job function

When job functions vary greatly, vague catch-all requirements are insufficient to support a defense to a disability claim

Remember the importance of job descriptions!



An inflexible maximum leave policy can violate the FEHA and the ADA Engage in the interactive process and

provide reasonable accommodation on a case-by-case basis

But remember – Employer has no obligation to provide an indefinite leave

It is hard to show undue hardship under the FEHA and the ADA when you have an unlimited vacation policy!


Assess a request for leave under all applicable statutes and provide the greater protections

ADAAA (Assumed Disabled and Always Accommodate) Engage in the interactive process from day one Use care asking employees questions

Check in on the employee during the leave – This helps fight abuse too!

Obtain medical certification

Review and update all policies that impact this

Poster requirements – track the languages you need

Use the right forms and confirm receipt

Keep records separate from personnel file

Train your frontline managers!

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Be prepared for employees out of office


Fair Credit Reporting Act

FCRA is growing area of concern

Often overlooked, the FCRA is a growing area for class action litigation

Worst insult for employers – likely being sued by people who only applied, rather than even worked for you

Makes it even more important to have structure on the front-end of employment process

And don’t forget about interplay of local ban-the-box movement, especially with California and San Francisco standards more restrictive than FCRA


Fair Credit Reporting Act 15 USC §1681:Employer requirements

Prior to obtaining a report, the employer must:

Disclose in a stand-alone written

document that a consumer report

may be obtained for employment

purposes

1

Get written authorization from the individual and

2

Certify to the consumer reporting agency that it

• notified the individual, • got written permission, • will comply with the

adverse action requirements of the FCRA, and

• will not use information in the report in violation of any federal or state equal employment opportunity law or regulation

3


Recent FCRA settlements

In April 2015, Home Depot settled for $1.8 million against roughly 120,000 individuals plus nearly $1 million in attorneys’ fees for allegedly using an authorization form that also released liability for the employer

In March 2015, Food Lion settled for nearly $3 million against roughly 60,000 applicants for the alleged failure to provide the disclosure form

and receive authorization

In October 2014, Publix settled for roughly $6.8 million against over 90,000 applicants for the alleged failure to provide the disclosure

agreement under the FCRA

In October 2014, Dollar General settled for $4 million against over 200,000 job applicants for the alleged failure to timely provide an FCRA

summary of rights formDOLLAR

GENERAL


FLSA exception amendments

US DOL overtime proposed regulations for white collar workers

Presidential Memorandum: modernize and simplify the regulations while ensuring that the FLSA's intended overtime protections are fully implemented

DOL Rulemaking:

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• Double the salary threshold, $23,660, to $47,892 per year (or $921 per week)

• Increase salary threshold from $100,000 to $122,148

• Build in future escalators for automatic increases


Next steps for FLSA overtime regulations?

Nearly 300,000 comments received and DOL “working feverishly to carefully look through the comments”

The final rule to expand overtime pay eligibility is to be issued by spring 2016, per Labor Secretary Thomas Perez in a December 16 interview

DOL estimates that 4.68 million white collar workers now exempt could become newly entitled to minimum wage and overtime protection under the FLSA

DOL estimates 420,000 California employees would be reclassified

Final rule may not be as broad as current proposal, but major changes are in the future for working managers


Thank you!

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Employment Law Briefing 2016 - DLA Piper/media/Files/Insights/Events/2016/01/elb… · Train HR,...

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