The Definition of “Spouse” to Legally Married Same-Sex Couples

June 30, 2014

There appears to be some confusion when employers are attempting to accommodate FMLA leave requests for the “spouse” of a same-sex couple. Well, to clarify this issue, the Department of Labor (“DOL”) has announced a notice of proposed rulemaking to revise the definition of “spouse” under the FMLA to make it clear that the FMLA applies to legally married same-sex spouses, regardless of where they live. Before last year, the FMLA applied only to opposite sex spouses. Last year, the United States Supreme Court issued its decision in United States v. Windsor, holding that federal laws that discriminate against same-sex married couples are unconstitutional. As a result of the Windsor decision, the FMLA’s provisions allowing family and medical leave to care for a “spouse” became applicable not only to opposite-sex spouses but also to same-sex spouses – so long as the employee requesting leave resides in a state that recognizes same-sex marriage. This is because the FMLA currently defines “spouse” in a way that is tied to the law of the state where the employee resides. The problem with the current spousal definition is that many states still do not recognize same-sex marriage, and even if an employee was married in a state that does recognize same-sex marriage, he or she technically is not eligible for FMLA leave (to care for a spouse) if currently living in a state that does not recognize same-sex marriage. This has resulted in administration difficulties for employers, many of whom would prefer not to have to engage in an inquiry about whether the employee resides in a state that recognizes same-sex marriage in order to determine whether to allow the employee leave. However, employers who have decided that they will provide the same leave benefits to same-sex spouses regardless of the state in which they reside, run the risk of deducting from an employee’s FMLA leave bank if the employee actually resides in a state that does not recognize same-sex marriage. Because the FMLA technically does not apply to spousal leave for that employee, any leave allowed should not be deducted from the employee’s FMLA leave bank. If the leave was deducted and the employee improperly was deemed to have exhausted all available leave only to later be denied leave that did fall under the FMLA, the employer could face liability for wrongful denial of FMLA leave.

The proposed amendment to the FMLA’s “spouse” definition eliminates this problem. Under the proposed rule, “spouse” would be defined to include individuals legally married in any state (including common law marriage where recognized under the law of the state). The definition would also extend to individuals validly married abroad if the individuals could have been legally married in any U.S. state.

The proposed rule has not yet been published. Once it is, it will be subject to a public comment period and approval process before it is actually approved and implemented. I will keep you posted of developments in this regard. Employers covered by the FMLA will want to check back with us and, once the rule is finalized, revise their FMLA policies and practices to ensure that their FMLA administration practices are in compliance with the new rule. For now, I would suggest extending the leave and not get into the issues surrounding same-sex couples.


EEOC Cracking Down on “Speaking English Only Policies”

June 23, 2014

Immigration reform continues to be a hot button issue, and a recent rash of lawsuits continues to fuel the debate over whether an “English-only” rule constitutes national origin discrimination. The EEOC’s position is that a “rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment” and presumptively “violates Title VII.” 29 C.F.R. § 1606.7(a). According to the EEOC, an “employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.” 29 C.F.R. § 1606.7(b). The majority of federal courts, however, have shown some tolerance of “English-only” rules. Generally, Courts will uphold an English-only rule if the employer can show a legitimate business justification for the requirement. Examples of legitimate business justifications that have been found to justify an English-only requirement are:

• Stemming hostility among employees (“They are talking about me!”).
• Fostering politeness to customers.
• Promoting communication with customers, coworkers, or supervisors.
• Enabling employees to speak a common language to promote safety.
• Facilitating a supervisor’s ability monitor the performance of an employee.
• Furthering interpersonal relations among employees.

Employers should be careful, however, to limit the reach of an English-only requirement only as far as it necessary to reach the articulated business rationale for the policy. For example, English-only requirements have been struck down as discriminatory where the policy included lunch hours, breaks, and even private telephone conversations.

Recently, one employer found out the hard way. The EEOC filed a lawsuit against a Wisconsin metal and plastic products manufacturer, claiming that it fired a group of foreign employees because of their national origin. According to the lawsuit, each of the 10 fired employees received overall satisfactory ratings on their annual performance evaluations, but received mark-downs for their English skills, which the EEOC alleged were not needed to perform their jobs.

It really is not a complicated issue. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin—and thus violates federal law.

In the recent case noted above, the EEOC alleged that the employer penalized the employees for English fluency in non-essential functions. If you intend to enforce an English-only rule, make sure you can justify the nexus between English fluency and job performance. For example, would safety or efficiency be impacted if employees cannot communicate in English? Does the job require interaction with non-employees, such as vendors or customers? If you can demonstrate a nexus between English proficiency and essential job performance, your English-only policy will have a much greater chance of surviving EEOC scrutiny.


Employee Fired for Refusing to Worship an Onion!! It’s True!

June 16, 2014

Every time I thought I have heard it all! This is not the start of a joke, but a real, live lawsuit filed by the EEOC.

According to the EEOC, United Health Programs of America, and its parent company, Cost Containment Group, required its employees to participate in “group prayers, candle burning, and discussions of spiritual texts,” all as part of a “belief system” that the defendants’ family member created, called “Onionhead.” The EEOC further alleges that employees who refused to participate were fired.

What is “Onionhead?” According to the Harnessing Happiness Foundation, Onionhead is not a “what,” but a “who.”

Onionhead is this incredibly pure, wise and adorable character who teaches us how to name it – claim it – tame it – aim it. Onion spelled backwards is ‘no-i-no’. He wants everyone to know how they feel and then know what to do with those feelings. He helps us direct our emotions in a truthful and compassionate way. Which in turn assists us to communicate more appropriately and peacefully. In turn, we then approach life from a place of our wellness rather than a place of our wounds. His motto is: peel it – feel it – heal it.

I’m not making this up. This comes right from the website of the Harnessing Happiness Foundation, which is a legitimate 501c3 nonprofit organization. It is “dedicated to emotional knowledge and intelligence, conflict resolution and life handling skills, for all ages,” which teaches the belief that “hope lies in our ability to deal with problems in a respectful, mindful and loving way.” “Onionhead” is part of Harnessing Happiness, which uses a genderless onion “as a medium to express peeling our feelings, as a way of healing our feelings.”

According to the New York Daily News, Denali Jordon, whom the EEOC’s lawsuit identifies as the group’s “spiritual leader,” denies that Onionhead is a religious practice.

Here’s the deal. For purposes of the EEOC’s religious discrimination lawsuit, it doesn’t matter whether or not Onionhead is a bona fide “religion.” According to the regulations interpreting Title VII’s religious discrimination provisions:

“In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

We know that forcing employees to participate in religious practices at work is a no-no. If “Onionhead” is a religion, than the EEOC will likely have an easy go of it in court. Should we take Ms. Jordon at her word that Onionhead is not a religious practice? According to Title VII’s regulations, the answer is no. According to the Harnessing Happiness Foundation’s website, Onionhead appears to include sincerely held moral or ethical beliefs about what is right and wrong. Thus, it appears that, even though Onionhead’s leaders deny its status as a religion, Title VII likely concludes otherwise.

What does all this mean for you? Leave religion out of the workplace. Whatever you call your deity—God, Jesus, Allah, Buddah … or even Onionhead—leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs.

As for me, I’m requesting no onions on my salad at lunch today (just in case)!!


Two New Laws on the Horizon

June 9, 2014

Last week, SB 935 (Leno) passed through the California Senate. SB 935 provides for additional increases in the California minimum wage. Under the current language of the bill, if enacted, the California minimum wage would move to $11 an hour in January 2015, $12 an hour in January 2016, and $13 an hour in January 2017. Increases in 2018 and thereafter would be based upon inflation. The bill specifically provides that the California Industrial Welfare Commission would not have authority to lower the minimum wage during periods of negative inflation. We expect SB 935 to pass the Assembly as well. It is unclear if Governor Brown would sign it.

AB 1522 also passed its first legislative house last week. AB 1522 (Gonzalez), also referred to as the Healthy Workplaces – Healthy Families Act of 2014, provides that any employee who works in the State of California for more than 7 days in a calendar year shall accrue paid sick leave at the rate of one hour for every 30 hours worked and would be able to use sick time at a rate of 24 hours per year after 90 days of employment. Under the terms of AB 1522, paid sick leave could be used for the employee’s illness or that of a family member as well as for any leave related to domestic violence, sexual assault or stalking. AB 1522 provides for a collective bargaining exception, as long as the CBA provides for some sick days. We expect AB 1522 to pass the Senate as well and anticipate that most of the important lobbying on this bill will occur at the Governor’s office.


Are You Properly Paying Commissions?

June 2, 2014

The issue of whether commissions have been properly paid etc. is a constant thorn in the side for employers. All commission agreements should be put in writing and signed by both the employee and the employer. The various state laws due permit employers to compensate employees, in whole or in part, on a commission basis. To qualify as commission wages, the employee must be involved in selling a product or service and the commission earnings must be a percentage of the price of the service or product sold.

Draws against commissions to be earned at a later date are legal only if the draw is equal to at least the minimum wage due the employee for all hours worked in each payroll period. The draw may be reconciled against any earned commissions at an agreed date or when the commission is earned if there is an express agreement to that effect between the employer and the employee. If no express agreement exists, the draw will be considered the basic wage in lieu of salary and fix the employee’s minimum compensation.

In general, once commissions have been earned they cannot be forfeited. However, whether commissions have been earned or forfeited is based on contract interpretation and the Labor Board has made forfeitures decisions on a case-by-case basis. Be careful with forfeitures. On the other hand, The Labor Board has determined no commissions will be found to be owed an employee where a contract provides that the employee is to receive no commission on accounts where payment is not received until a set number of days (as an example, 30 days) after separation of employment. As noted above, be careful with forfeitures. Commissions may be found to have been earned and payable to an employee after separation of employment if the contract terms are overly harsh and the employee lacked meaningful choice in the contract negotiation. This is another reason to set out the terms in writing at the outset of employment. If the commission plan changes at some point remember such changes require one payroll period notice of any such change.

Finally, upon termination of employment, an employer must pay the employee at the time of termination all commission wages earned that can be reasonably calculated at the time of separation. Try to give them at least 75% and pay the remainder when commissions are normally due. Where the employee voluntarily quits his or her employment without notice, all commission wages that can be reasonably calculated at the time must be paid to the employee within 72 hours of termination of the employment relationship.