California Supreme Court Finds No Franchisor Liability in Sexual Harassment Case Involving Domino’s Pizza

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Published on Tuesday, 02 September 2014 Written by Editor

In a significant case addressing franchisor liability for the sexual harassment of a franchisee’s employee, the California Supreme Court has ruled in favor of Domino’s Pizza, holding that there was no liability. The case, Patterson v. Domino’s Pizza, involves a female worker at a Domino’s Pizza franchisee, who alleged that a male supervisor subjected her to sexual harassment. She sued the franchisor, Domino’s Pizza, along with the harasser and franchisee, arguing that because the franchisor was the “employer” of persons working for the franchisee, and because the franchisee was the “agent” of the franchisor, the latter could be held vicariously liable for the alleged sexual harassment. The trial court granted summary judgment for the franchisor on the ground the requisite employment and agency relationships did not exist. The Court of Appeal disagreed, and reversed the judgment of the trial court. The California Supreme Court granted review to address the novel question dividing the lower courts in this case: Does a franchisor stand in an employment or agency relationship with the franchisee and its employees for purposes of holding it vicariously liable for workplace injuries allegedly inflicted by one employee of a franchisee while supervising another employee of the franchisee?  According to the California Supreme Court, “The answer lies in the inherent nature of the franchise relationship itself.”

Read more: California Supreme Court Finds No Franchisor Liability in Sexual Harassment Case Involving Domino’s Pizza

California Legislators Approve Paid Sick Leave

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Published on Tuesday, 02 September 2014 Written by Editor

California legislators have approved the biggest expansion of employer-paid sick leave in the nation and sent the measure to Governor Jerry Brown, who is certain to sign the legislation. AB 1522, sponsored by Assemblywoman Lorena Gonzalez, D-San Diego, covers workers whether they work full- or part-time. Businesses with one or more employees must comply with the new regulations. The bill provides that employees who are not currently covered by a company plan, will earn one hour of paid sick time for every 30 hours worked. They could use sick leave after working 90 days on the job and "bank" three paid sick days a year. The California Assembly approved the bill on a 52-21 vote shortly after 1 a.m. Saturday.

Read more: California Legislators Approve Paid Sick Leave

EEOC to Sign National Memorandum of Understanding with Mexico

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Published on Thursday, 28 August 2014 Written by Editor

The U.S. Equal Employment Opportunity Commission (EEOC) will sign a national Memorandum of Understanding (MOU) with the Ministry of Foreign Affairs of the United Mexican States on Friday, August 29, 2014. The MOU is designed to further strengthen their collaborative efforts to provide immigrant, migrant and otherwise vulnerable Mexican workers and their employers with guidance and information and access to education relative to their rights and responsibilities under the laws enforced by the EEOC.  EEOC Chair Jacqueline A. Berrien and Mexican Ambassador Eduardo Medina Mora will sign the MOU in English and in Spanish.

Read more: EEOC to Sign National Memorandum of Understanding with Mexico

Employers Are Liable for Harassment of Employees by Customers

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Published on Tuesday, 26 August 2014 Written by Editor

Employers must implement policies and procedures to ensure that employees are not harassed by nonemployees such as clients, customers or vendors. In a recent case, the Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Costco alleging that at one of its locations, management failed to take steps to protect one of its female employees from unwelcome advances of one of its warehouse member-customers. According to the EEOC, the agency's administrative investigation revealed that the employee repeatedly complained to her managers at the Glenview, Ill., Costco location where she worked about being pursued, approached, and confronted in the Costco by the man. In addition, one of her managers apparently told the employee that he agreed the man was "not right" and that Costco would monitor the situation. However, when the situation persisted and the employee complained to the police, Costco management allegedly yelled at her and told her to be friendly to the customer. John Hendrickson, the EEOC regional attorney in Chicago, said, "All employers have a duty to protect employees from sexual harassment...No employer gets a pass because it is a customer targeting its employee, rather than a manager or fellow employee."

Read more: Employers Are Liable for Harassment of Employees by Customers

EEOC Challenges Employer’s Wellness Program

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Published on Monday, 25 August 2014 Written by Editor

In its first lawsuit to directly challenge a wellness program pursuant to the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) has charged that Orion Energy Systems violated the ADA by requiring an employee to submit to medical exams and inquiries that were not job-related and consistent with business necessity as part of a "wellness program," which was not voluntary, and then by allegedly terminating the employee when she objected to the program. The EEOC contends that Orion instituted a wellness program that required medical examinations and made disability-related inquiries. When an employee declined to participate in the program, Orion shifted responsibility for payment of the entire premium for her employee health benefits from Orion to the employee, and shortly thereafter, terminated the employee.

Read more: EEOC Challenges Employer’s Wellness Program

Governor Brown Signs Bill on Group Health Insurance Waiting Period

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Published on Friday, 22 August 2014 Written by Editor

California  Governor Brown has signed SB 1034 into law, which imposes a 90-day limit on eligibility waiting periods for group health insurance benefits issued by insurers. The federal ACA already had eligibility waiting periods limited to 90-days, effective January 1, 2014. In 2013, California had enacted AB 1083, which imposed a 60-day limit on eligibility waiting periods. SB 1034 conforms California law on waiting periods to federal law.

Read more: Governor Brown Signs Bill on Group Health Insurance Waiting Period

Employer Must Pay $1M and Reinstate Drivers Allegedly Terminated for Raising Safety Concerns

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Published on Tuesday, 19 August 2014 Written by Editor

Asphalt Specialists Inc. has been found in violation of the Surface Transportation Assistance Act by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) for allegedly wrongfully terminating a foreman and two truck drivers. The drivers allegedly raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers. Headquartered in Pontiac, the asphalt paving company was ordered to reinstate the three employees to their former positions with all pay, benefits and rights. The company was also ordered to pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages. The foreman, who was terminated from employment on June 30, 2012, had allegedly repeatedly raised concerns to the company's co-owner about exceeding hours of service when job assignments repeatedly failed to allow for the 10-hour rest period mandated by the Department of Transportation. At least twice, the foreman and the crew were expected to work more than 27 hours straight. The employee rightfully refused to operate a vehicle in an unsafe manner, which could potentially cause serious injury to the worker, co-workers or the public.

Read more: Employer Must Pay $1M and Reinstate Drivers Allegedly Terminated for Raising Safety Concerns

Employer Will Pay $92,500 for Alleged Retaliation

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Published on Tuesday, 19 August 2014 Written by Editor

Bertolini Corporation, a stackable chair manufacturer, has agreed to pay $92,500 to settle a retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC had charged Bertolini with unlawful retaliation against two employees. According to the EEOC's suit, the company retaliated against two employees, a maintenance mechanic and a human resources assistant, by firing them because they complained about unlawful discrimination at the company. In addition, to the monetary relief, the one-year consent decree settling the lawsuit enjoins the company from retaliating against any employee; requires it to provide in-person training regarding retaliation to its Tennessee employees and to maintain records of any complaints of retaliation.  The company must also provide a report to the EEOC regarding any such complaints.

Read more: Employer Will Pay $92,500 for Alleged Retaliation

Federal Judge Rules Prime Trucking’s Same-Sex Training Policy Violates Federal Law

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Published on Tuesday, 19 August 2014 Written by Editor

A federal judge has ruled that New Prime, Inc., one the nation's largest trucking companies, violated federal law by discriminating against female truck driver applicants when it required that they be trained only by female trainers, the U.S. Equal Employment Opportunity Commission (EEOC). The court found that the company, which does business as Prime, allegedly engaged in discrimination by denying employment opportunities to women through its same-sex trainer policy. Prime adopted its policy after it was found in a previous EEOC lawsuit to have violated Title VII based upon the sexual harassment of one of its female driver trainees. Based on a discrimination charge filed by Deanna Roberts Clouse, the EEOC filed suit against Prime again. The EEOC charged that Prime's policy of assigning female trainees only to female trainers discriminated against Clouse and all other female applicants for truck driver trainee positions because of their sex. Because Prime had very few female trainers, this practice resulted in female trainees waiting extended periods of time, sometimes up to 18 months, for a female driver to become available, which resulted in most female drivers being denied employment. Male applicants were promptly assigned to male trainers.

Read more: Federal Judge Rules Prime Trucking’s Same-Sex Training Policy Violates Federal Law

Ban on Naps Proves Costly for City of Los Angeles

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Published on Wednesday, 13 August 2014 Written by Editor

The Los Angeles City Council has finalized a $26-million dollar settlement to end a lawsuit over a ban on lunchtime naps taken by sanitation-truck drivers. The settlement amount, approved on a 9-2 vote, resolves a class-action lawsuit involving nearly 1,100 sanitation workers who alleged said they were improperly barred from sleeping and engaging in other activities during their meal breaks. Sanitation officials had imposed the no-nap rule to avoid the bad publicity that would come if a resident, business owner or television news crew stumbled across a sleeping city employee. But lawyers for the drivers said the city, by limiting workers' mealtime activities, had impeded their ability to take a meal break.

Read more: Ban on Naps Proves Costly for City of Los Angeles

Employers Must Consistently Enforce Personnel Policies and Procedures

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Published on Tuesday, 12 August 2014 Written by Hailey Benton, Esq., Floyd, Skeren & Kelly, LLP

A recent case, Riverside County Sheriff's Department  v. Jan Stiglitz, serves as a reminder that employers must consistently enforce personnel policies and procedures, in particular those related to terminations. The case involves Kristy Drinkwater, a Correctional Deputy, who was terminated for allegedly falsifying time records in order to obtain compensation to which she was not entitled.  She appealed her termination, arguing that the disciplinary action was disproportionate to her misconduct because other County Sheriff's Department (the "Department") employees who had falsified time records received lesser punishment. She then submitted a motion to hearing officer Jan Stiglitz for discovery of disciplinary records of other Department personnel who had been investigated or disciplined for similar misconduct.  Stiglitz eventually ordered the Department to produce the requested records and the Department appealed.  The case has made its way to the California Supreme Court.

Read more: Employers Must Consistently Enforce Personnel Policies and Procedures

EEOC Sues Tech Company for Alleged Pregnancy Discrimination

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Published on Monday, 11 August 2014 Written by Editor

Virginia-based Savi Technology, Inc., which specializes in providing sensor-based predictive analytic solutions that enable customers to track and monitor high value assets, has been sued by the Equal Employment Opportunity Commission for allegedly violating federal law when it rescinded a job offer after learning that a job candidate had recently given birth. According to the EEOC, after Christine Rowe successfully completed a telephone interview and an in-person interview, Savi Technology offered her the director of human resources position. However, the day after Savi Technology extended the job offer, Rowe advised the company vice president and general counsel, who was to be her direct supervisor, that she had recently given birth and had surgery related to her pregnancy. The next day, the vice president and general counsel allegedly informed Rowe that the job offer was rescinded.

Read more: EEOC Sues Tech Company for Alleged Pregnancy Discrimination

Judge Rejects $324.5M Settlement in Tech Wage Case

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Published on Monday, 11 August 2014 Written by Bernadette M. O'Brien, Esq., SPHR, Floyd, Skeren & Kelly LLP

A federal judge has rejected a $324.5 million settlement in a class action lawsuit filed by high-tech workers, which alleges that Google and Apple conspired with other technology companies to block top employees from taking better job offers. U.S. District Judge Lucy Koh rejected the settlement on the grounds that it is not enough to cover the damages done to the tech workers. According to Judge Koh, the workers are entitled to at least $380 million.  Originally, the tech workers were seeking $3 billion in damages before settling for about 10 percent of that, which if it had been awarded in a trial, could have been tripled to $9 billion under U.S. antitrust law. Under a $9 billion award, the tech workers would have received an average of more than $140,000. Under the proposed $324.5 million settlement, Judge Koh estimated that after subtracting attorneys' fees and costs of $82 million, the workers would have received an average of $3,750; that amount "falls below the range of reasonableness" according to Koh.

Read more: Judge Rejects $324.5M Settlement in Tech Wage Case

Employer Will Pay $37,500 for Allegedly Terminating Employee Because of Back Impairment

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Published on Friday, 08 August 2014 Written by Editor

MPW Industrial Services Inc., a provider of industrial cleaning and labor support services, has agreed to pay $37,500 to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, the company terminated Todd Semko, who was hired as a laborer, before his first day of work after it learned during a fitness-for-duty evaluation that he has an implanted Transcutaneous Electrical Nerve Stimulation (TENS) unit in his lower back for a back impairment. The EEOC charged that Semko was fired because a company occupational nurse feared he would not be able to charge the TENS unit at the worksite even though Semko explained that he did not need to charge the unit during working hours. Semko was not under any medical restrictions. The company did not request  additional medical documentation from Semko's doctor, nor did the company explore providing a reasonable accommodation.

Read more: Employer Will Pay $37,500 for Allegedly Terminating Employee Because of Back Impairment

NRLB Rules Required Drug and Alcohol Test Triggers "Weingarten" Rights

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Published on Thursday, 07 August 2014 Written by Editor

The National Labor Relations Board (NLRB) has ruled that Ralphs Grocery Company violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by suspending and then terminating Vittorio Razi for his refusal to take a drug and alcohol test without union representation. The Board ruled that the reason for Razi's termination was "inextricably linked to his assertion of Weingarten rights."  Razi refused to take the test because he wanted to consult with a union representative beforehand. Razi asked for representation and he attempted—unsuccessfully—to contact a representative by phone. Rather than wait to see if a representative would become available, Ralphs terminated Razi. Ralphs argued that Razi's refusal to take the drug and alcohol test was grounds for discipline because it constituted insubordination. However, the Board held this was "not a valid defense" because the drug and alcohol test triggered Razi's right to a Weingarten representative. According to the Board, since Razi's refusal to submit to the test without the presence of a union representative was an exercise of his Weingarten rights, his refusal could not lawfully be used against him.

Read more: NRLB Rules Required Drug and Alcohol Test Triggers "Weingarten" Rights

Employer Will Pay $80K for Alleged Retaliation

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Published on Thursday, 07 August 2014 Written by Editor

Turner Machine Company will pay $80,000 and furnish other relief to resolve a lawsuit for retaliation filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC's suit, Ken Woodard was hired by Turner in June 2011, and he worked as a mechanical engineer. Problems began when he raised concerns about mandatory employee meetings called "huddles," which occurred every morning. During the huddles, employees would discuss milestones occurring in their personal lives including their religious affiliations and church activities. Woodard opposed this practice, and subsequently filed a discrimination charge.  The charge with the EEOC was resolved through an informal mediation process, but Turner Machine later allegedly retaliated against Woodard by terminating him.

Read more: Employer Will Pay $80K for Alleged Retaliation

DOL Proposes Rule Pertaining to Federal Contractors to “Combat Pay Discrimination”

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Published on Thursday, 07 August 2014 Written by Editor

The U.S. Department of Labor (DOL) has announced a proposed rule requiring federal contractors and subcontractors to submit an annual Equal Pay Report on employee compensation to the Office of Federal Contract Compliance Programs. The requirement would apply to companies that file EEO-1 reports, have more than 100 employees and hold federal contracts or subcontracts worth $50,000 or more for at least 30 days. The OFCCP would use the Equal Pay Report to collect summary employee pay and demographic data using existing government reporting frameworks.

Read more: DOL Proposes Rule Pertaining to Federal Contractors to “Combat Pay Discrimination”

Employers May Require Exempt Employees to Use Accrued Vacation for Partial Day Absences

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Published on Wednesday, 06 August 2014 Written by Bernadette M. O'Brien, Esq., SPHR, Floyd, Skeren & Kelly, LLP

Both the federal Fair Labor Standards Act (FLSA) and California law require that an employer pay overtime wages to employees unless those employees are classified as exempt, and paid on a salary basis. One area of dispute has been whether, under California law, an employer may require that an exempt employee use his or her accrued vacation or other leave time (as opposed to a deduction from salary, which is not permitted) when the employee is absent from work for partial days, including for increments of less than four hours. In Rhea v. General Atomics, the Court of Appeal held that an employer may require that an exempt employee use accrued vacation/PTO for partial day absences, even for increments of less than four hours.

Read more: Employers May Require Exempt Employees to Use Accrued Vacation for Partial Day Absences

NLRB Officials Ratify Actions Taken During Period Supreme Court Held Board Members Were Not Validly Appointed

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Published on Wednesday, 06 August 2014 Written by Editor

The National Labor Relations Board (NLRB) has unanimously ratified all administrative, personnel, and procurement matters taken by the NLRB from January 4, 2012 to August 5, 2013.  The Supreme Court recently held in NLRB v. Noel Canning that the Board Members appointed on January 4, 2012 by President Obama were not validly appointed. The Board regained a quorum on August 5, 2013.  From January 4, 2012 to August 5, 2013, the Board acted on various matters including the appointment of various Regional Directors, Administrative Law Judges, and restructurings of regional and headquarters offices.  The Board has now ratified these actions to remove any question concerning the validity of actions undertaken during that period of time.

Read more: NLRB Officials Ratify Actions Taken During Period Supreme Court Held Board Members Were Not Validly Appointed

NLRB Rules McDonald’s May Be Jointly Liable for Labor Violations

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Published on Tuesday, 05 August 2014 Written by Editor

The general counsel of the National Labor Relations Board (NLRB) has ruled that McDonald's could be held jointly liable for employee wage violations by its franchise operators. If the NLRB decision is upheld, McDonalds could be held liable for alleged illegal employment actions taken at 1000s of franchises around the country. The ruling arose from an NLRB investigation into claims by employees that McDonald's franchisees allegedly terminated, threatened or otherwise penalized fast-food workers for their protests calling for a $15 dollar minimum wage. The fast-food workers have asserted that McDonald's is a joint employer because franchise owners must strictly adhere to its rules on food, cleanliness and employment practices, and the workers assert that McDonald's often owns the restaurants that franchisees use.

Read more: NLRB Rules McDonald’s May Be Jointly Liable for Labor Violations

California Cities Consider Minimum Wage Increases

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Published on Tuesday, 05 August 2014 Written by Editor

The California Chamber of Commerce is reporting that more California cities are considering minimum wage increases. According to the CalChamber article, Oakland, San Diego and San Francisco have all recently raised the issue of raising the minimum wage. On July 29, the Oakland City Counsel rejected a plan calling for a minimum wage increase to $12.25 per hour for companies with more than 150 employees, although Oakland voters will consider a November ballot measure to raise the minimum wage; the San Diego City Council approved an ordinance that increases the minimum wage to $11.50 an hour by January 1, 2017; and, in San Francisco, the Board of Supervisors unanimously voted to place a measure on the November ballot to increase the city's minimum wage, which is currently at $10.74 per hour.

Read more: California Cities Consider Minimum Wage Increases

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