After a lengthy period of public comment and several revisions, California’s Fair Employment and Housing Council finally adopted amendments to the California Fair Employment and Housing Act (FEHA) regulations.  The amendments, which went into effect on April 1, 2016, generally reinforce existing law but also impose several new and detailed requirements for employers.

Requirements for harassment, discrimination and retaliation policy:

As of April 1, every California employer must have a harassment, discrimination, and retaliation policy that:

  1. Is in writing;
  2. Lists all current protected categories under the California FEHA (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over 40, military and veteran status, and sexual orientation);
  3. Specifies that employees are protected from illegal conduct from any workplace source, including third parties who are in the workplace;
  4. Creates a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure;
  5. Informs employees about several different avenues (other than to a direct supervisor) for reporting a complaint and allows employees to have direct communication with a designated company representative, such as a human resources manager or other reliable company personnel;
  6. Requires supervisors to report any complaints of misconduct to a designated company representative; and
  7. Makes clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.

Continue Reading New Amendments to California Fair Employment and Housing Act Now Effective

A number of significant developments in California labor and employment law occurred in 2015. This article will highlight the developments we believe are most important for California employers, including a new mandatory paid sick leave law, a substantial overhaul of the Fair Pay Act, the solidification of special meal period waivers for healthcare employees, the prohibition of certain no-hire clauses in California settlement agreements, and a few others.

California Paid Sick Leave Laws

On July 1, 2015, California became the second state in the nation (following Connecticut) to implement a mandatory paid sick leave law and the first state in the nation to require paid sick leave for all employers.  Unlike Connecticut, there is no small employer carve out.

Continue Reading California Case Law 2015 Recap

Employers often must balance the mandates of seemingly competing directives. A challenging example arises in the area of possible mental impairment.  An employer may hear concerns that an employee is acting abnormally, or has hinted at a desire to hurt herself, or is exhibiting other possible signs of mental impairment.  The employer does not wish to stereotype the employee unfairly, or unlawfully “regard” the employee as disabled; yet, the employer also must ensure a safe work environment for other employees and others on the premises. Continue Reading Mental Impairments: When Can an Employer Require a Fitness-for-Duty Exam?

On Thursday, February 25, 2016, the U.S. Department of Labor proposed new rules to implement Executive Order 13706, which requires certain federal contractors to provide qualifying employees with at least seven days of paid sick leave each year, including paid leave for family care. The Department of Labor intends to publish a final version of these rules by September 30, 2016, and employers who contract with the federal government should begin preparing for their implementation now. Noncompliance could result in suspension of federal payments or even termination of a federal contract. Continue Reading New Mandatory Paid Sick Leave Rules Could Ensnare Unwary Federal Contractors

The EEOC recently announced two new lawsuits it has filed alleging that employers have violated Title VII’s protections against gender bias to include prohibitions against sexual orientation bias. The lawsuits are not very surprising in light of the EEOC’s position last July, in Baldwin v. Department of Transportation. There, in a case involving a federal employee, the EEOC took the position that discrimination against a person based on sexual orientation is, by its nature, discrimination on the basis of sex. Continue Reading EEOC Alleges in Two Lawsuits That Title VII Prohibitions Extend to Sexual Orientation Bias

An Indiana Federal Court Judge recently ruled that NCAA student-athletes are not employees and thus do not have a claim for minimum wage payments. In Anderson et al. v. NCAA et al., three former track athletes claimed that, as student-athletes, they really should be treated as student interns and that under the Department of Labor guidance issued in 2010, the athletes were more akin to employees, entitled to minimum wage pay.

District Judge William T. Lawrence disagreed and dismissed the wage lawsuit against several defendants, including the NCAA and the University of Pennsylvania.  The Judge determined that the athletes’ attempt to use the guidance for interns was not instructive for, and should not be followed in the case of, student-athletes. The Judge also noted that universities having thousands of student-athletes who are unpaid is not a secret but yet the Department of Labor has not issued guidance directly addressing them or claiming that the minimum wage laws apply to student-athletes.

Counsel for the student-athletes vowed to appeal the ruling.

In a February 4, 2016, decision, United States ex rel. Wall v. Circle C. Construction, LLC, the Sixth Circuit summarily rejected the government’s assertion that the measure of damages in a False Claims Act (FCA) suit involving a violation of prevailing wage rate requirements was the total amount paid for the work.  The Sixth Circuit’s rejection of the “total contract value” theory of damages in the prevailing wage rate context is a welcome development for FCA defendants who are faced with increasingly creative damages theories asserted by the government and the relator’s bar.

Circle C’s Army Contract

For a case that involved a relatively minor non-compliance with the prevailing wage rate requirements applicable to federal construction contracts, the Circle C. Construction case has a long history.  Circle C entered into a contract to construct warehouses at the U.S. Army base at Fort Campbell, located in Kentucky and Tennessee.  Pursuant to the Davis-Bacon Act, Circle C was required to pay electrical workers at least $19.19 per hour, plus a fringe benefit rate of $3.94 per hour.  Circle C was also required to submit certified payroll for itself and its subcontractors.

Continue Reading

Bass, Berry & Sims attorney Tim Garrett analyzed an employer’s obligations in responding to workplace conflict among employees. Conduct on social media between colleagues and domestic violence situations that can spill over into the workplace have blurred the lines of what is considered on-duty and off-duty behavior. This new landscape has left many employers wondering how involved a company should be in responding to these situations. In the article, Tim outlines some practical guidelines for balancing these concerns.

This article is the last in a three-part series on the topic of how the culture war in America is playing out in the workplace. The full article, “Workplace Conflicts: How Involved Must An Employer Be?,” was published by InsideCounsel on December 23, 2015 and is available online.

Use the links below to access the other two articles in the series published by InsideCounsel earlier this year:

The United Auto Workers (UAW) is celebrating a rare win among Southern auto plants, after a small unit of maintenance workers at the Volkswagen plant in Chattanooga, Tennessee voted to unionize.  The unit makes up only 12% of the 1,400 production and maintenance workers, and they voted 108-44 in favor of the UAW.  VW is appealing an earlier ruling by the National Labor Relations Board (NLRB) that allowed a vote of such a small unit of workers within the much larger plant.  This appeal sets the stage for a possible legal battle for years to come. 

This victory comes almost two years after the UAW lost a much-publicized plant-wide vote in February 2014.  Tennessee Governor Bill Haslam, when asked for his reaction to the most recent vote, down-played the UAW win, claiming that the victory came because the union was able to “cherry-pick” the employees who were included in the vote.

This UAW win further informs employers about the impact of the NLRB’s ruling allowing such “micro-units.”

Employers should not rely on handbook provisions to create enforceable obligations on employees.  The employers who do so took another loss recently. In Lorenzo v. Prime Commc’ns, LP, 2015 BL 386874, 4th Cir., No. 14-1622, 11/24/15, the federal Fourth Circuit Court of Appeals ruled that an arbitration provision, contained in an employee handbook, was not enforceable. The provision, said the Court, did not require an employee to take her wage and hour claims to arbitration. Rather, the employee was free to pursue those claims – including a collective action – in federal court.

Continue Reading Arbitration Provision in Employee Handbook Not Enforceable

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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