A U.S. District Court judge, Lucy Koh, appears satisfied with a proposed $415 million settlement that would conclude a lawsuit in which tech workers accused Apple, Google and two other Silicon Valley companies of conspiring to hold down salaries. The plaintiffs alleged that Apple, Google, Intel and Adobe Systems agreed to avoid poaching each other’s employees, thus limiting job mobility and, as a result, holding down salaries. Judge Koh had previously rejected an earlier $324 million deal as too low. During a hearing on Monday, March 2, 2015, Judge Koh raised no objections about the size of the settlement as she had at an earlier court session. Although Judge Koh did not formally rule from the bench on whether she would preliminarily approve the new deal, she set another hearing date for final sign off of the $415 million deal. Read more here.
ValleyLife, a disability support services company, has been sued by the Equal Employment Opportunity Commission (EEOC) for allegedly terminating disabled employees rather than provide them with a reasonable accommodation in the form of a leave of absence due to its inflexible leave policy. The policy compelled the termination of employees who had exhausted their paid time off and/or any unpaid leave to which they were eligible under the Family Medical Leave Act (FMLA). For example, the EEOC alleges that the company forced out one supervisor due to his need for further surgery when his FMLA leave was exhausted. In addition, the company did not engage in any interactive process to determine whether any accommodations (including additional leave) were possible. The employee had worked for ValleyLife for over ten years at the time of his termination. The EEOC also alleges that ValleyLife commingled medical records in employee personnel files and failed to maintain these medical records confidentially in violation of the Americans with Disabilities Act (ADA). Read more here.
U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States. Read more here.
The U.S. Supreme Court recently heard oral argument in EEOC v. Abercrombie, a lawsuit involving an employee’s right to wear a hijab in the workplace. The case involves Samantha Elauf, a practicing Muslim who applied for a position as a model at the Abercrombie Kids store in Tulsa, Okla., in 2008. She was denied employment because she was wearing a black headscarf, known as hijab, which violated the company’s “look policy.” The EEOC argues that Abercrombie violated Title VII of the Civil Rights Act by failing to accommodate Elauf’s religious beliefs. Abercrombie claims Elauf never informed hiring managers of the conflict and that allowing her to wear a headscarf would have imposed an undue hardship on the company. The company’s position was upheld by the 10th Circuit Court of Appeals after a federal district court sided with the EEOC. Read more here.
According to a recent LA Times article, “Women are leaving the Tech industry in droves.” As noted in the article, industry group Code.org, predicts that computing jobs will more than double by 2020, to 1.4 million. However, if women continue to leave the field, an already significant shortage of qualified tech workers will worsen. During the summer of 2014, Google, Facebook, Apple and other big tech companies released figures showing that men outnumbered women 4 to 1 or more in their technical sectors. It's why the industry is so eager to hire women and minorities. For decades tech companies have relied on a workforce of whites and Asians, most of them men. Although numerous educational programs now encourage girls and minorities to pursue technology at a young age, qualified women are still leaving the tech industry in significant numbers. Read more here.
The U.S. Department of Labor (DOL) has announced that workers in legal, same-sex marriages, regardless of where they live, will now have the same rights as those in opposite-sex marriages to federal job-protected leave under the Family and Medical Leave Act (FMLA) to care for a spouse with a serious health condition. The DOL announced a rule change to the FMLA in keeping with the U.S. Supreme Court ruling in United States v. Windsor. That ruling struck down the federal Defense of Marriage Act provision that interpreted "marriage" and "spouse" to be limited to opposite-sex marriage for the purposes of federal law. The rule change updates the FMLA definition of "spouse" so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Read more here.
A jury will soon hear claims by the now-interim chief executive of the news and social-networking site Reddit that a Silicon Valley venture capital firm subjected her to sexism while she worked for the company. Ellen Pao’s lawsuit alleges that Kleiner Perkins Caulfield & Byers allowed her to be sexually harassed by male managers, and then punished and eventually terminated her when she complained. Ms. Pao also alleges that the company excluded her and other women from business meetings, dinners and promotions. However, the Menlo Park company says it hired an outside investigator who conducted a thorough investigation and found that Pao’s claims were without merit. Pao was eventually terminated from her position as a junior partner because “she could not demonstrate the skills necessary for success as an investing venture capitalist” and because she had “conflicts with most of her colleagues, men and women.” Her lawsuit may rattle Silicon Valley companies, where gender and racial diversity have been a recurring problem for financial and technology companies. Kleiner Perkins’ lawyers said in a court filing that Pao is seeking $16 million, a figure her lawyers have not confirmed. After jury selection Monday, the trial is scheduled to last four weeks. Read more here.
After nearly six years of litigation, a federal district court in Philadelphia entered a $39.8 million judgment in favor of workers who participated in more than 400 death benefit plans that were allegedly mismanaged, in violation of the Employee Retirement Income Security Act (ERISA). The defendants in that case are permanently barred from serving as fiduciaries to any employee benefit plan and, with the exception of one defendant, must make restitution to the plans. Read more here.
St. Alexius Medical Center of Hoffman Estates will pay $125,000 to a former employee to resolve a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC charged that the hospital violated the Americans with Disabilities Act (ADA) by allegedly failing to accommodate a disabled employee, who worked as a greeter. The former employee suffers from cognitive disabilities, and, according to the EEOC, she asked for simple accommodations, such as written job instructions, which would have allowed her to do her job. Allegedly, rather than provide the accommodation, the hospital eventually terminated the employee. In addition to the monetary settlement amount, the hospital must also train its managers and other employees about the ADA, implement policies against disability discrimination, and adhere to certain record-keeping and reporting requirements. Read more here.
Anthem Inc. is offering free identity theft protection to current and former customers dating back more than a decade. The health insurer continues to investigate how hackers broke into a database storing information for about 80 million people. Anthem Inc., will provide credit monitoring and identity theft repair assistance for those who experience fraud. The company discovered the breach of its system when a computer system administrator determined that outsiders were using his credentials to log into the system. The hackers gained access to customer names, birthdates, email addresses, employment details, social security numbers, incomes and street addresses. It does not appear that medical information was breached. Read more here.
The National Labor Relations Board (NLRB) continues to crack down on employers that the agency believes have overly broad social media polices. In light of this, employers should consult with their legal counsel to ensure that workplace policies, particularly social media policies, do not contain overly broad language. In a recent case, the Fort Worth Regional Office of the National Labor Relations Board (NLRB) announced that Baylor Health Care System, Scott & White Healthcare has agreed to rescind “overly broad policies,” including its social media policies, and in addition, post and email an NLRB Notice to all of its 35,000 employees throughout Texas in response to a complaint filed by the NLRB. The company has also agreed to advise employees of their Section 7 rights in the workplace. Baylor Health Care System, Scott & White Healthcare provides medical services throughout the state of Texas. Unfair labor practice charges were filed against the company alleging that the company maintained overly broad policies with regards to social media, government investigations and inquiries, fair treatment, addressing compliance concerns, solicitation and distribution, union-free workplace, personal conduct, and its code of ethical conduct. The NLRB issued a complaint alleging that the overly broad rules interfered with employees’ Section 7 rights to engage in concerted activity. Employers need to ensure that their social media policies do not contain overly broad language such as no “disparaging remarks” about the employer, which could be interpreted by employees as restricting their right to make, for example, comments about working conditions. Read more here.
Seasons 52, a national restaurant chain and one of the Darden restaurant brands, has been sued by the Equal Employment Opportunity Commission (EEOC) for allegedly engaging in a nationwide pattern of age discrimination in hiring hourly employees. According to the EEOC, since at least 2010, Seasons 52 has discriminated against a class of applicants for both "front of the house" and "back of the house" positions, such as servers, hosts and bartenders, by failing to hire them because of their age (40 years and older) when opening new restaurants. The EEOC charges that various Seasons 52 management hiring officials would travel to new restaurant openings to oversee their staffing. Older, unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including "too experienced," the restaurant's desire for a youthful image, looking for "fresh" employees, and telling applicants that Seasons 52 "wasn't looking for old white guys." In light of the aging baby boomer generation, and because many individuals are choosing to work past the traditional “retirement age”, there will likely be a surge in age discrimination claims. To avoid liability, employers must ensure compliance with state and federal anti-discrimination laws. Read more here.
In a recent decision by the 8th Circuit (Hilde v. City of Eveleth) the court reversed a summary judgment in favor of an employer in an Age Discrimination in Employment Act (ADEA) case, finding that a city’s failure to promote the city’s lieutenant to Chief of Police could have been motivated by age. Specifically, the court noted, “To assume that Hilde was uncommitted to a position because his age made him retirement-eligible is age-stereotyping that the ADEA prohibits.” The court also observed, quoting from another decision that, “it is the essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age.” The case involved Lieutenant Leroy Hilde (51 years old), who was second-in-command, with an excellent performance history. When the city’s Chief of Police retired, Lieutenant Hilde assumed he would be promoted to the position; he had been promoted from within for 22 years. Lieutenant Hilde also had the highest service score of the job candidates. However, during the hiring process, one commissioner stated that “[W]e were all aware that he was eligible to retire at any point in time that he chose. He was eligible right then; he could have pulled the trigger at any time.” The candidate selected was not eligible for retirement for another seven years. For employers, this case demonstrates that adverse employment actions based upon retirement eligibility may constitute age discrimination in violation of the ADEA. Read more here.
The California Chamber of Commerce has filed a letter brief with the California Supreme Court asking the court to decide what test should be applied in class action lawsuits involving allegations that workers were misclassified as independent contractors. The court has agreed to review Dynamex Operations West, Inc. v. Superior Court, a case involving a class action lawsuit brought by delivery drivers who alleged they were misclassified as independent contractors, which resulted in unlawful denial of overtime and other wage-and-hour violations. The appellate court issued an opinion allowing workers in the class action lawsuit to rely on a Wage Order’s definitions of “employer” and “employee” to support their misclassification claim. The Wage Order test is easier for a worker to establish than the common law “right to control” test. CalChamber plans to file an amicus brief. Read more here.
A car dealership, Benny Boyd Chevrolet-Chrysler-Dodge-Jeep, Ltd., d/b/a Benny Boyd Lubbock, and Boyd-Lamesa Management, L.C. will pay $250,000 in damages and back pay to former manager Randall Hurst to settle a federal disability discrimination suit, the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged the automobile dealership with disability discrimination law by allegedly denying a partnership to Hurst because of his multiple sclerosis, subjecting him to a hostile work environment and forcing him to quit as a result. According to the EEOC's lawsuit, the car dealership enticed Hurst away from a lucrative job at another dealership to be the General Manager of its Lubbock location. According to the EEOC, the compensation package offered Hurst included a promise of partnership. After successfully operating the dealership for several months, Hurst was diagnosed with multiple sclerosis, and his medical condition was disclosed to the company's top management staff. Thereafter, the company allegedly failed to extend the partnership to Hurst, and he was told that the reason was his MS. Read more here.
The Equal Employment Opportunity Commission (EEOC) has released its Fiscal Year 2014 Enforcement and Litigation Data, which states that sex discrimination (this includes pregnancy and sexual harassment) constituted almost 30% of the charges filed with the EEOC in 2014. Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. State law also provides protection. For example, in California, sexual harassment is prohibited by the Fair Employment and Housing Act (FEHA), which applies to employers with 5 or more employees. Because sexual harassment claims can result in significant liability for employers, it is important to implement preventative measures in the workplace including:
- Creation of a strong anti-harassment policy;
- Training for each employee on its contents;
- Training for managers and supervisors on its contents;
- Vigorous adherence to, and enforcement of, the policy.
Note: In California, employers must also ensure that managers and supervisors receive the required AB 1825 sexual harassment training, which now includes training on "abusive conduct."
At a Summit on Disability and Employment, the White House announced a new guide for employers related to the employment of disabled individuals, created by the Equal Employment Opportunity Commission (EEOC). The resource guide, Recruiting, Hiring, Retaining, and Promoting People with Disabilities, provides employers with technical assistance tools in a question-and-answer format. The resource guide also identifies federal resources for employers interested in recruiting, hiring, retaining, and promoting disabled individuals. It is also intended to answer common questions from employers related to the employment of disabled individuals. The helpful guide is divided into four sections as follows:
- Best Practices for Recruiting Candidates with Disabilities;
- Best Practices for Respecting, Retaining and Promoting Employees with Disabilities;
- Best Practices for Providing Reasonable Accommodations;
- The Legal Framework.
One important question addressed by the resource guide is “what can an interviewer ask about a person’s disability during the hiring process?
CHSWC Releases 2014 Annual Report on California's Health and Safety and Workers' Compensation Systems
Oakland, CA (WorkersCompensation.com) - The Commission on Health and Safety and Workers' Compensation (CHSWC) has released its twentieth Annual Report for 2014. The 2014 Annual Report presents information about the health and safety and workers' compensation systems in California and makes recommendations to improve their operations.
The 2014 Annual Report includes CHSWC's recommendations for legislative and administrative changes for the benefit of California's workers and employers:
Re-examine the workers' compensation system in light of the passage of Senate Bill (SB) 863, especially in the following areas:
- Permanent disability compensation
- Medical care quality, accessibility, timeliness and cost
- Timeliness and cost of dispute resolution
The U.S. Equal Employment Opportunity Commission (EEOC) has issued an advance notice of proposed rulemaking (ANPRM) on the equal employment opportunity (EEO) complaint process in the federal sector. The ANPRM is published in the Federal Register. The ANPRM signals the first public comprehensive review of the federal sector EEO complaint process undertaken by the EEOC in several decades. The ANPRM contains a series of questions intended to encourage new thinking about the federal sector process. The EEOC became responsible for the federal sector EEO complaint process in 1979 when it inherited a complaint process from the Civil Service Commission. The EEOC is interested in hearing from the public on whether the current process can be improved, and if so, whether far-reaching reforms are necessary or whether the process requires only a modest fine-tuning. Read more here.
Anthem Inc., the country’s second-biggest health insurer, has advised its customers that hackers broke into a database containing personal information for about 80 million of its customers and employees in what may be the largest data breach disclosed by a health-care company. Investigators are still looking into the extent of the security breach, which was discovered last week. Anthem said it is likely that “tens of millions” of records were stolen. The health insurer said the breach exposed names, birthdays, addresses and Social Security numbers but does not appear to involve medical information or financial details such as credit-card or bank-account numbers, nor are there signs the data are being sold on the black market. Read more here.
The U.S. Equal Employment Opportunity Commission (EEOC) has released a comprehensive set of fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014. The number of charges filed decreased compared with recent fiscal years. The percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, remained steady at approximately 35 percent, followed by sex discrimination at 29.3 percent and disability discrimination at 28.6 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation. The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million. Read more here.