Retaliation-The New Discrimination Claim

December 29, 2014

Retaliation claims are now the most common type of claim filed with the EEOC.  Twenty years ago, only 15% of the charges complained of retaliation.  By 2013, that total had leapfrogged to 41%, and is higher than race (35%), sex (29%), or age (22%).  But what is causing this jump, and how do we combat this upward trend in retaliation claims?

A few thoughts to ponder:  For one thing, employers (and society-at-large) have simply become better at not discriminating against people for status-based reasons (such as race and age), leading to fewer status-based discrimination charges (that’s a good thing!).  For another thing, plaintiffs’ attorneys are great at finding ways to “bundle” a retaliation claim with an underlying discrimination claim (that can be a bad thing!).  Just have the plaintiff identify a single bad thing that occurred at work after he or she complained to the boss about mistreatment, and a Title VII retaliation claim is born.

Maybe the main reason for the rise in retaliation claims is the perception that these are just easier cases to sell to juries.  Traditional discrimination claims can be difficult to sell to juries (and hard for a plaintiff to prove) because people do not like to believe that their bosses are bigoted or sexist.  But it easier to tell a story about someone who complains at work all the time — and then for what the plaintiff calls “retaliation” and claims management punished him for complaining in the first place.  In that sense, retaliation claims have broader, more intuitive appeal to a jury than do standard discrimination claims.

What does the rise in retaliation claims mean for employers?  Retaliation is harder to spot and to prevent than traditional discrimination claims (because it can take on many forms, can be harder to prove that necessary link, but also harder to prove that it didn’t happen).  EEO training tends to focus on what everybody already knows — don’t fire an employees for being too old, or Hispanic, or for following a strange religion.  Retaliation (and what it can look like) needs to be addressed thoroughly as part of your anti-harassment/non-discrimination training and all managers and employees need to be reminded that retaliating against someone who made a complaint (or treating someone differently after they’ve complained about discrimination or harassment) is grounds for disciplinary action as well.

If you don’t have an anti-retaliation policy, then implement one immediately.  If you already do, then make it part and parcel of your anti-discrimination policy.  Let management know that retaliation is illegal discrimination, and that it cannot be tolerated.  Document the anti-retaliation training so that you can show, down the road and if necessary, what meaningful steps you took to prevent the retaliation. If Employee A makes a claim of age discrimination against Manager B, then be proactive with Manager B regarding the company’s legal and ethical obligations to not retaliate against the complainer.

NOTE: The Podcast topic for the week discusses in detail the New Sick Leave Law!

New Sick Leave Law Effective January 1, 2015

December 22, 2014

We have received numerous calls regarding the new California sick time law. The following article was written by Art Silbergeld, Esq. and clarifies the new requirements.

This year, California continued its trend of passing employee-friendly legislation by passing the Healthy Workplaces, Healthy Families Act of The Act provides paid sick time for every temporary, part-time, and fulltime employee in California. Though the bulk of the Act’s requirements for employers do not take effect until July 1, 2015, the Act does require employers to post notice of the new law beginning January 1, 2015. The State Labor Commissioner has released a draft poster that employers can use to meet this requirement. Employers should also include notice of the new paid sick leave requirements in their Wage Theft Notice to Employees required under Labor Code section 2810.5. The Department of Industrial Relations created a sample notice containing language about the new law.

In addition to the other requirements discussed previously, the Act requires employers to:

  • include the number of paid sick hours an employee has accrued (or has remaining under a policy that grants the full balance of sick days at the beginning of the year) on the employee’s pay stubs or wage statements,
  • maintain records of sick day accrual and use for up to three years,
  • reinstate to any terminated employee who is re-hired within a year of termination previously accrued, unused paid sick time, and allow the rehired employee to accrue additional paid sick time immediately,
  • allow any employee that accrues sick time to carry time over into the next year; employers may cap the number of hours used in one year to 3 days (24 hours) and can cap the maximum accrual to 6 days (48 hours). These new policies and record-keeping responsibilities will take some time to implement, so employers should begin working with their payroll administrators as soon as possible to get new systems in place by July 1, 2015. Employers could face fines of up to $4,000 a day for violating the Act’s requirements, including the poster requirement—so employers should act immediately so they start the New Year in compliance with the law.

Arthur Silbergeld, Esq.

Norton Rose Fulbright Law Firm

December 15, 2014

IRS Issues New Guidelines for Mileage Reimbursement

Last week, the IRS issued the 2015 optional standard mileage rates used to calculate the costs of operating a vehicle for business, charitable, medical or moving purposes.  Beginning on January 1, 2015, the standard mileage rates are as follows:

  • 57.5 cents per mile for business miles driven, up from 56 cents in 2014;
  • 23 cents per mile driven for medical or moving purposes, down half a cent from 2014; and
  • 14 cents per mile driven in service of charitable organizations.

Under California Labor Code section 2802, California employers are required to reimburse employees for reasonable expenses necessarily incurred in the performance of their job duties.  This includes expenses associated with the use of their personal vehicles for business purposes.  Most employers use the standard mileage rate to satisfy their obligation to reimburse employees for expenses associated with using their personal vehicles for business travel.  Although employers are not required to use the IRS optional standard mileage rate, and can instead try to calculate an employee’s “actual” expense associated with personal vehicle use (which includes more than just the cost of gas, but also the cost of wear and tear, etc.), the latter method carries risk of being challenged for not providing adequate reimbursement.


Supreme Court Rules Employer Need Not Pay for Worker Security Screenings

The issue in this case was whether the employer had to compensate employees for having to go through a security screening process. The case was brought under the Fair Labor Standards Act (FLSA) whereby warehouse workers sued Integrity Staffing under the FLSA for uncompensated time they were required to spend in lengthy security screenings (lasting up to 25 minutes) at the end of their shifts during their assignments to work in Amazon warehouses. The Court held that the employees at Integrity Staffing Solutions facilities in Nevada could not claim compensation for the time spent going through security screenings aimed at protecting against theft because these activities were not integral and indispensable to their principal duties.

In addition, the Court observed that, unlike requiring pre-shift donning and doffing of protective gear, Integrity Staffing could have completely eliminated the security screenings altogether without impairing the safety or effectiveness of the employees’ principal activities.

Under the FLSA, as amended by the Portal-to-Portal Act, employers generally need not compensate employees for “preliminary” (pre-shift) and “postliminary” (post-shift) activities, unless the activities are “integral and indispensable” to an employee’s principal activities. To be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.” The FLSA distinguishes between activities that are essentially part of the ingress and egress process and those that constitute the actual “work of consequence performed for an employer.” Finding the security screenings were clearly part of the former, the Court cited an early Department of Labor opinion interpreting the Portal-to-Portal Act in 1951, where the Department had found non-compensable a pre-shift security search of employees in a rocket-powder plant “‘for matches, spark producing devices such as cigarette lighters, and other items which have a direct bearing on the safety of the employees,’” as well as a post-shift security search of the employees done “‘for the purpose of preventing theft.’” The Department of Labor had drawn no distinction between the two types of searches (employee safety versus theft prevention), finding them both non-compensable under the Portal-to-Portal Act.

What Does the Integrity Staffing Decision Mean for Employers?

Of immediate concern, the Supreme Court’s decision provides a clear, final answer for employers on security screenings, which have become more common. The decision also wipes out the spate of class and collective action lawsuits filed by employees seeking back pay for time spent undergoing pre- or post- shift security checks that were filed in the wake of the Ninth Circuit’s decision, eliminating some tremendous potential liability for those employers. More broadly, even though this case focused only on security checks, the decision could further limit the scope of what constitutes “integral and indispensable” activities. Over time, a more limited view of an employee’s principal activities should prove valuable to employers looking for certainty about the compensability of a host of pre- and post-shift activities with the exception of the current “donning and doffing of uniforms which employers still have to pay for.

Note: The Podcast this week discusses “Dress Code Policies” and the rights of employers and employees. Go to or find us on ITunes.

Premium Holiday Pay & Minimum Wage Increase Acceleration

December 8, 2014

Proposed Bill to Accelerate Minimum Wage Increases

Last week, on the first day of the California legislative session, State Senator Mark Leno introduced a bill to accelerate the proposed increase to California’s statewide minimum wage.  Leno has been a strong proponent of an increased statewide minimum wage.

I am not sure at this point what will happen with this bill.  However, the bill, as introduced, would raise California’s minimum wage to $11 in 2016 (instead of $10 under current legislation passed in 2013) and $13 in 2017.  After 2017, the bill calls for regular minimum wage increases indexed to inflation.

Senator Leno introduced a similar bill last year, but it died in committee.  Given the current climate on minimum wage, this year’s version likely has a better chance of ultimate success.  I will continue to keep you posted on the progress of this and other employment-related bills as they are introduced and move forward during the legislative session.

Premium Pay for Certain Holidays Being Proposed

First, San Diego Assemblywoman Lorena Gonzalez announced that she is going to introduce a bill that guarantees that all California workers (part-time and full-time) receive double their regular rate of pay if they are required to work on Thanksgiving or Christmas.  (Note: In Ohio, state representative Michael Foley already introduced a bill that would require stores in Ohio to pay triple the regular hourly rate for workers who are required to work Thanksgiving).  Assuming Gonzalez’ bill does get introduced, we expect it to have substantial support from her fellow lawmakers.  This bill would be introduced in next year’s legislative session (2015) and will not affect Christmas this month.  Currently, Gonzalez plans to only include Thanksgiving and Christmas as days requiring premium pay.  However, it is certainly possible that amendments to expand the scope of the bill are debated and that additional holidays or other dates (Black Friday, Christmas Eve etc.) are considered.

Sacramento Considering Citywide Minimum Wage Ordinance

Second, Sacramento Mayor Kevin Johnson has announced that he will put together a task force shortly after January 1 to consider the issues surrounding raising Sacramento’s minimum wage above the current state level ($9 currently increasing to $10 in 2016).  Mayor Johnson claimed that the task force will include representatives from the business community and from organized labor.  He announced that he will ask the group to look into a variety of issues surrounding a potential Sacramento minimum wage including whether to do it, the timing of it, and what if any exemptions should be provided.  The Mayor has not identified a particular dollar figure for the new minimum wage and that issue will likely also be considered and proposed by the task force.  We expect that any minimum wage increase is likely to be supported by the City Council and the citizens of Sacramento.

I will keep you updated on these issues as they develop.


Planning your workplace holiday party? Read this first!

December 1, 2014

Every year I try to put out reminders regarding the “holiday” season. If you are planning your holiday party now, and you want answers to your burning questions while you still have time to do something about it, read on! These are the typical inquires I have received over the years.

What do you consider to be the Number One risk factor for employer liability resulting from workplace holiday parties?

I would say crystal meth, except that the employers I know don’t typically serve it at their parties. They do, however, serve alcohol. For this reason, I say alcohol. Alcohol (1) loosens inhibitions, which can result in sexual harassment, inappropriate comments, or fighting, and (2) impairs judgment and reaction times, which can result in accidents when guests leave the party.

Employers having parties where drinks are served need to do what they can to protect intoxicated guests and their potential victims.

What can an employer do to make sure that it isn’t liable for a drunk driving accident after a workplace party?

There is probably no way to eliminate the risk of liability (assuming that alcohol is going to be served), but you can minimize risks by doing some or all of the following: (1) paying for cabs to take impaired employees home, (2) having the party at a hotel, or within walking distance of a hotel, and providing rooms for anyone who may not be able to get home safely, (3) having designated drivers, (4) having a cash bar with drinks so expensive that your employees won’t want more than a couple (but be prepared to be called a cheapskate if you do this), (5) closing the bar after about two hours, and (6) serving lots of free food to soak up all that booze.

Another good thing to do, if you can afford it, is invite spouses and significant others to the party. They aren’t called “better halves” for nothing – they will frequently be forces for moderation.

Is it against the law to call our party a “Christmas party”?

Not if you’re a private employer. Although city and county governments get sued for things like putting Nativity scenes in the town square, that’s because they are governments. The First Amendment prohibits governments from establishing a “state religion.”

If you’re a private employer, then go ahead and call the party what you want, but be sensitive to employees who are not Christians. Trees, greenery, and lights should be fine. Santa (the Coca-Cola Santa, not the real St. Nicholas) is probably ok, too. I love the idea of including Chanukah decorations with Christmas decorations when Chanukah is occurring around the same time (just a thought).

Make sure that employees of all faiths (and non-believers, too) know that they are welcome at your party. And don’t forget that some employees — most notably, Jehovah’s Witnesses — do not believe in having parties at all. (Note: Jehovah’s Witnesses are not opposed to all parties, but only to those connected with religious celebrations or that may be poorly managed — for example, by having free-flowing alcohol.) Allow employees to opt out of your party without penalty if they consider attendance to be a sin, or if they have some other type of sincere religious objection. (This would be a religious accommodation, which the law requires if it’s not an undue hardship. I feel safe in predicting that no court would find it an “undue hardship” for you to let an employee skip your holiday party.)

Can we require, or “strongly encourage,” employees to attend the holiday party?

Sure, but I don’t recommend it. For two reasons: (1) employer liability for injuries, and (2) wage and hour.

Your liability as an employer for something bad that happens at a workplace party is going to depend primarily on whether the party was within the course and scope of employment. If attendance is required, then it’s a good bet that the party is within the course and scope of employment. That means that if an employee gets hurt at your party or hurts another employee, the injuries will be compensable under your workers’ compensation policy. If an employee hurts a non-employee (spouse, date, unfortunate driver who happened to be on the road at the wrong time), you could be legally responsible for your employee’s negligence. If attendance is truly voluntary, on the other hand, then the party may not be in the course and scope of employment, and as a result, you may not have these liabilities as an employer.

(It should be noted that an employer can always be liable – either under workers’ comp or tort law – for injuries caused by its own negligence.)

Mandatory attendance is a bad idea from a wage and hour standpoint, too. If non-exempt employees are required to attend, then you must pay them for their party time, and if the party hours — added to their actual work hours for the workweek — put them over 40, then you have to pay overtime for those extra hours. (California requires daily overtime.) If attendance is truly voluntary, you shouldn’t have to pay for the party time unless the employee performed actual work (for example, handing out name tags, or performing set-up/clean-up duties, or acting as a company-appointed designated driver).


“No, I’m not sayin’ you have to come. I’m just sayin’ your presence would be very much appreciated.”

And why do I keep saying “truly voluntary”? Because if you tell employees that their attendance is “encouraged” or “expected,” then their attendance is probably not “truly voluntary.” Employees tend to feel compelled to do what their employer “suggests” or “expects.” (At least, the good ones do.)

In closing, I hope that everyone who is planning a workplace party this year will have a blast. But not too much of a blast. And with due respect for all viewpoints. And without coercion. And in full compliance with applicable wage and hour laws.

Happy holidays! Be safe!


NOTE: Speaking English only in the workplace is the topic for the podcast. Listen to one employee who called in. or ITunes (Listen up wit Jim Potts).