English-only Policies: Federal Law

April 24, 2016

The issue of whether or not an employer can have or enforce an “English-only” rule is now being considered on a federal level. This issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964. Some states have addressed this issue and now the National Labor Relations Board (NLRB) is attempting to interject itself into this debate.

Last month, in Valley Health System, an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”

The ALJ concluded:

Employees would reasonably construe the English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.

What does this decision mean for employers?

  1. It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land—yet! However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.
  2. It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.

As a final note, employees who only speak English complain that the bi-lingual employee is “talking about me.” It can create a morale problem. Both sides need to understand those who speak more than one language need to be considerate of those who do not, and those who do not, need to be more understanding of those who do.

As usual, I will keep you posted on any changes.

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Modification Pay for Changing an Employee’s Schedule

April 20, 2016

Within the last few weeks, California has raised its minimum wage and expanded its paid family leave rights.  Another bill expanding employee rights that is pending in the State Legislature is SB 878.  This bill is designed to require California grocery, retail, and restaurant employers to provide employees advance notice of their work schedules and to pay its employees “modification pay” for any unilateral changes that the employer makes to the schedule thereafter.

SB 878, in its current form, requires covered employers to provide all non-exempt employees with their work schedule, setting forth all hours of work, at least seven calendar days prior to the first shift on the schedule.  If the employer (a) subsequently cancels or moves the shift to another date or time or (b) subsequently requires the employee to work a shift not on the provided schedule, the employer must pay the employee additional “modification pay” on top of his or her regular pay and any applicable overtime, as follows:

  • If the change occurred more than 24 hours prior to the shift (but less than seven calendar days), the employee receives an additional hour of pay at his or her regular rate of pay;
  • If the change occurs in less than 24 hours prior to the commencement of the shift, the employee receives modification pay that is at least equal to half of that shift’s hours, but in no event less than two hours and no greater than four hours.

There are certain exemptions to modification pay that include acts of God, illness/vacation of another employee where that employee did not provide seven days’ notice of said illness or vacation, and where utilities are unable to provide water, gas or electricity causing modifications.  In addition, the modification pay is not required where the employer requires the employee to work overtime (beyond the scheduled shift).

I will keep you posted but get ready!


Obesity: a Protected Disability?

April 18, 2016

In a closely watched case, a federal Circuit Court of Appeal has rejected a claim that the ADA protects “obesity” as a disability. This is good news for sure considering the vast majority of Americans are considered “overweight.”

The applicant had applied for a machinist position with BNSF and was extended a conditional offer of employment contingent on a satisfactory medical review. The applicant completed BNSF’s medical questionnaire, reporting that he was 5’10” tall and weighed 270 pounds and that he had once been diagnosed as “pre-diabetic” but was not currently diabetic. Two subsequent physical examinations by BNSF doctors pegged his weight between 281 and 285 pounds, and his BMI between 40.4 and 40.9. BNSF’s policy was not to hire for a safety-sensitive position if the applicant’s BMI was 40 or greater. Thus, BNSF revoked its conditional offer of employment, and the applicant sued.

The court ultimately concluded that obesity this is not linked to or caused by an underlying medical condition is not an ADA-protected disability. The court heavily relied on the EEOC’s ADA Interpretive Guidance in distinguishing between a protected physical impairment and an unprotected physical, psychological, environmental, cultural, or economic characteristic.

In essence, the court concluded that a more natural reading of the interpretive guidance is that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only if it falls outside the normal range and it occurs as the result of a physiological disorder. Both requirements must be satisfied before a physical impairment can be found. In other words, even weight outside the normal range—no matter how far outside that range—must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA.… Taken as a whole, the relevant statutory and regulatory language makes it clear that for obesity to qualify as a physical impairment—and thus a disability—under the ADA, it must result from an underlying physiological disorder or condition.

This decision is consistent with that of the 6th Circuit in EEOC v. Watkins Motor Lines, which held that weight far outside the normal range does not constitute a physical impairment in the absence of an underlying physiological disorder or condition. Watkins, however, is a 2006 case, and BNFS is the first obesity-as-disability appellate decision since the ADAAA significantly amended the Act’s definition of disability in 2009. The EEOC had weighed in on the employee’s behalf in an attempt to expand the definition of disability to cover obesity not triggered by or linked to an underlying medical condition. For this reason, BNSF is a key victory for employers on this issue.

Note: This week’s Podcast discusses the North Carolina “Universal Bathroom” issue. Men, in general, being able to use the ladies room! We can be found on ITunes & Facebook just search for “Listen Up with Jim Potts.”


Another New Set of Pending Laws!

April 11, 2016

The California Legislature is at it again! I am convinced that they will not be happy until every employer in the state moves out! Here are some of the pending bills that have been introduced. For my out of state readers, get ready. California law has a tendency to creep out like a virus! In addition, if you have any California employees this will impact you as well.

AB 67 (double time for work on Thanksgiving):  This bill would require retail store and grocery store employers with more than 500 employees to pay double time to employees who work on Thanksgiving.  This would not apply to exempt employees or to employees covered by collective bargaining agreements meeting specified conditions.

AB 908 (Increased EDD/Paid Family Leave Wage Replacement Benefits):  Under current law, California employees who are disabled from working and/or who need to take time off to bond with a new child or to care for a seriously ill family member are entitled to wage replacement benefits through the state.  These benefits generally provide wage replacement up to 55% of the employee’s regular compensation.  This bill would increase the benefit amount to up to 70% for lower wage earners and 60% for higher wage earners.  This bill would also eliminate the 7-day waiting period currently in place for receipt of paid family leave benefits. Ok, just to be clear, this bill will not cost the employer anything. I can live with that.

AB 1676 (Inquiries Regarding Salary History):  This bill would prohibit employers from making oral or written inquiries about an applicant’s salary history.  It would also require private employers to provide an applicant with the pay scale for a position upon request.  Logically, this would mean that the work application would have to be changed.

AB 2405 (Pay for School Activities Leave):  This bill would require employers (those with 25 or more employees) to provide up to 24 hours of paid leave to be used for purposes of school activities leave (Labor Code section 230.8).  California employers with 25 or more employees are already required to provide employees unpaid time off for this purpose, but this bill seeks to amend the statute to provide for paid time off for up to 24 hours. Now, just to refresh your memory, the bill passed last year now gives the employee up to 40 hours to participate in school activities. This would be 24 hours of that is paid. Also, last year the state mandated 3 paid sick days so if this passes there will be 6 paid days off not including vacation. I can easily see employers reducing the amount of time they give out for vacation. In my opinion, at some point the California Legislature will make vacation a mandatory benefit (hush, don’t jinx us!).

SB 1166 (Parental Leave):  This bill would require all California employers with 5 or more employees to provide up to 12 weeks of unpaid leave to an employee for purposes of bonding with a new child within the first year of the child’s birth, adoption, or foster care placement.  The employer would also be required to maintain the employee’s health benefits (on the same terms as if the employee was actively reporting to work) for up to 12 weeks.  California employers with 50 or more employees are already required to provide this leave under FMLA/CFRA to employees meeting minimum length and hours of service requirements.  This bill effectively would eviscerate the eligibility requirements for this type of leave that would otherwise apply under FMLA/CFRA and would make the leave mandate applicable to employers with less than 50 employees. They are out of their minds! An employer with only 5 employees? Do they realize the impact? Obviously not.

There you have it. I will keep you posted. By the way, I will post some additional ones next week and one or two that I will be discussing on the Podcast over the next few weeks.

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Two Articles: One Federal & One California

April 4, 2016

Federal Rule: Employers Must Disclose the Use of Attorneys/Consultants

Last week, the Department of Labor’s controversial “Persuader Rule” was published in the Federal Register and will require employers, beginning July 1, 2016, to make disclosures to the DOL regarding consultants and attorneys they hire to assist them in persuading employees regarding representational (union organizing only) and collective bargaining matters. Previously, such disclosures were required only if the consultant had direct contact with the employees, but not if the consultant merely gave advice and assistance to the employer on how to communicate with employees.  The new rule is intended to close this purported “loophole” and to now require disclosures from both the employer and the consultant even where the consultant or attorney has no direct contact with employees and the employer is free to accept or reject the consultant’s recommendations.

Under the new rule, employers and their consultants must report not only when the consultant is hired to directly persuade employees (through direct communications) but also when the consultant does not directly communicate with employees but is nonetheless engaged to do work that has an “object” to persuade.  This type of work includes (1) planning, directing, or coordinating managers to persuade workers (e.g. planning group or individual employee meetings or training supervisors to conduct such meetings); (2) providing materials to employers to disseminate to workers (e.g. drafting, revising, or providing written or oral material, speeches, or similar multimedia content);(3) conducting seminars for supervisors or other employer representatives; and/or (4) developing or implementing personnel policies, practices, or actions to persuade workers (e.g. coordinating the timing and sequence of union avoidance tactics/strategies).

Reportable conduct does NOT include a consultant or lawyer’s work in merely reviewing and revising employer-created material where the object of the review/revision simply is to ensure legality as opposed to optimizing the persuasiveness of the material.

California New Minimum Wage Schedule

Well, a “deal” has been reached between labor unions, certain democratic lawmakers, and the California Governor to increase California’s minimum wage to $15 per hour by 2022.  Last week, California’s Assembly and Senate both voted to approve the bill, largely along partisan lines.  All but two democrats (Assembly members Tom Daly and Adam Gray) voted in favor of the bill.  No Republicans in either house voted in favor of the bill.  The bill was passed by a vote of 48-26 in the Assembly and by a vote of 26-12 in the Senate.  The bill is now on Governor Brown’s desk for consideration.  Governor Brown has already announced that he will sign the bill into law.

Under the new California law, the minimum wage will increase for employers with 26 or more employees as follows:

  • January 1, 2017 — $10.50 per hour
  • January 1, 2018 — $11.00 per hour
  • January 1, 2019 — $12.00 per hour
  • January 1, 2020 — $13.00 per hour
  • January 1, 2021 — $14.00 per hour
  • January 1, 2022 — $15.00 per hour

For employers with less than 26 employees, the minimum wage will increases will occur one year later on the following schedule:

  • January 1, 2018 — $10.50 per hour
  • January 1, 2019 — $11.00 per hour
  • January 1, 2020 — $12.00 per hour
  • January 1, 2021 — $13.00 per hour
  • January 1, 2022 — $14.00 per hour
  • January 1, 2023 — $15.00 per hour

After 2022/2023, the minimum wage will automatically increase by up to 3.5 percent based on CPI (Consumer Price Index).

In addition to providing for minimum wage increases, the new law will phase in paid sick leave for in-home supportive care workers (who had been carved out of the statewide paid sick leave law that took effect in 2015) beginning July 1, 2018.

California’s minimum wage (currently $10 per hour) is already the highest in the country and this new law seems likely to preserve that ranking into the foreseeable future. Significantly, many cities in California have implemented local minimum wage ordinances that are even higher than the statewide minimum wage, and the new law (unlike the laws of many other states) does not preempt local minimum wage ordinances — meaning that California employers will need to continue to ensure compliance with both the statewide law and any local ordinances applicable to their workforces.