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EEOC settles sexual harassment and retaliation suit against Goodwill

The U.S. Equal Employment Opportunity Commission recently issued a press release announcing an $850,000 settlement in a sexual harassment and retaliation suit against Goodwill Industries of the East Bay Area and an affiliated employer.

The money will be paid to eight employees, some of whom have developmental disabilities. Six were janitors who alleged regular sexual harassment by their supervisor. Two were managers who alleged employer retaliation for supporting the women's complaints.

Pre-employment wages may not be used to justify paying women less than men: Ninth Circuit decides major Fresno case under the federal Equal Pay Act

All California employers have a legal responsibility to pay wages and salaries in nondiscriminatory fashion. We recently published a post about a new California law that took effect on January 1, 2018, that forbids employers from asking new hires - either orally or in writing - about their past salary levels or wage amounts.

Under the new law, an employer not only may not ask about past salary, but also may not use a past salary level as the basis of a hiring decision or a new starting wage. The idea behind the law is that because a past salary level could have been based on illegal discrimination such as because of gender, using that past salary to make future employment decisions at a new employer would just perpetuate the discriminatory gap in pay from one job to the next. San Francisco also prohibits this practice by city ordinance.

U.S. Supreme Court: Employers May Require Employees to Arbitrate their Claims Individually and Waive Their Rights to Class Actions

Employers just gained a huge victory from the United States Supreme Court regarding the arbitration of employment-related claims. On May 21, 2018, in a narrow 5-4 decision, the Court held that employers may include a clause in their employment contracts that requires employees to arbitrate their disputes individually, and to waive their rights to pursue class action lawsuits against their employers.

In Epic Systems Corp. v. Lewis, the Court consolidated three cases involving alleged wage-and-hour violations that groups of employees sought to litigate through class actions or collective actions in federal court. In each case, employees had signed employment agreements that contained arbitration clauses, but argued that by requiring individual arbitrations of their claims, these clauses violated the National Labor Relations Act (NLRA), which gives them the right to engage in concerted activities "for the purpose of collective bargaining or other mutual aid or protection." The question before the Supreme Court: May employers require employees to waive their right to class or collective actions?

Employee or contractor? Court watchers get whiplash

In March, we wrote about a new federal case interpreting California employment law on the question of whether a worker should be classified as an employee or an independent contractor. As we described, in that case about a Grubhub driver, the court found that under California's Borello test, Lawson, a driver who delivered food to Grubhub customers, was an independent contractor largely because Grubhub did not have the degree of control over his work that an employer would have.

In that post, we linked to an article that quotes Lawson's lawyer as saying she was surprised that the federal court decided the case under the Borello test because the California Supreme Court was about to decide a case called Dynamex in which the court might adopt a more restrictive test further limiting who is properly classified as an independent contractor.

Court says employer is not required to provide indefinite disability leave

The U.S. District Court for the Southern District of California issued a decision on February 2 that provides instruction for California employers on a unique situation: Whether an employer must continue to renew multiple requests for ongoing medical leave for total disability when there is no indication of when the employee will be able to return to work.

In Ruiz v. ParadigmWorks Group, Inc., Ruiz worked as an admissions counselor in San Diego for ParadigmWorks (PGI). Ruiz broke her ankle, which caused temporary total disability from work. Pursuant to a note from her doctor, PGI gave her unpaid leave for a few days. Thereafter, the physician wrote another note extending the period of disability approximately three more months, during which time Ruiz had surgery. Finally, a third note requested leave for disability for another six weeks or so. Instead of further extending her leave, PGI terminated her employment at this point.

What does it mean for employers to make reasonable accommodations?

Numerous state and federal laws prohibit discrimination and harassment in the workplace based on protected worker characteristics such as disability. Employers are also required to make reasonable accommodations in the workplace for employees with physical or mental disabilities.

While California and federal laws against disability discrimination are very similar and have significant overlap, in some aspects, state law provides greater protections to employees. For example, state law applies to many more small employers (those that have at least five employees), while federal law only governs those with at least 15 workers.

U.S. sues over California law that protects immigrants at work

We recently wrote about a new California state law that took effect on January 1 imposing new legal responsibilities on employers in certain immigration-related situations. To recap, the main provisions of the law require California employers to:

  • Only let federal immigration agents access nonpublic areas of work premises if they have valid judicial warrants, with some exception
  • Only let these agents review employee records if they show official court orders or subpoenas, with some exception
  • Provide posted 72-hour notices of certain federal immigration Form I-9 or similar inspections as well as furnish copies of certain related documents to employees on request
  • With some exceptions under federal law, refrain from re-verifying employment eligibility of employees

Is an alternative workweek right for your business?

When competing for talented employees, many businesses look for new ways to provide flexibility to current employees and attractive options to potential hires. Taking advantage of California's alternative workweek is one way to accommodate the lifestyles of many employees, whether they have child care needs, work a second job or just want an extra day off. According to the Bureau of Labor Statistics, flexible or alternative workweeks are on the rise nationwide.

However, the alternative workweek model may not work well for every business. On its face, the benefits of an alternative workweek to employees seem obvious, but the needs of your business and your customers should also be carefully considered. California employers should also be aware that the state requires employers to follow a specific process when implementing it in the workplace, including a written proposal to employees, a secret ballot election, and reporting of the results to the California Department of Industrial Relations.

A look at estate planning and the new SALT deduction limits

Given extensive changes coming with the new federal tax law (the Tax Cuts and Jobs Act of 2017), it is a good idea for all taxpayers, especially those in higher income brackets, to sit down with an estate planning attorney to discuss whether their estate plans should be changed.

One aspect of the new law that may affect many Californians is the new limitation on the state and local tax deduction, known as SALT.

Bill would ban discrimination against medical cannabis patients

As you may know, California's legalization of recreational cannabis use does not prevent employers from enforcing drug-free workplace policies. Employers may decline to hire job applicants or fire employees who test positive for cannabis.

Since the California Supreme Court has ruled that this is true even for employees with legal prescriptions for medical cannabis, it is likely the high court would apply the same rule for the legal use of recreational cannabis. However, recently proposed California legislation seeks to change this.

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