A Checklist to Prevent Discrimination Complaints!

March 27, 2017

Employers, in general, are on the ropes when it comes to discrimination complaints. The EEOC has stated; “in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated; ensuring employees are held accountable; and assessing and responding to workplace “risk factors” for harassment” are all important factors to consider in the prevention of discrimination complaints. One such tool the EEOC provided was a series of four checklist for employers to use to create an effective harassment prevention program.

  • Leadership and accountability.
  • Anti-harassment policies.
  • Harassment reporting systems and investigations.
  • Compliance training.

Checklist One: Leadership and Accountability The first step for creating a holistic harassment prevention program is for the leadership of an organization to establish a culture of respect in which harassment is not tolerated.

  • Leadership has allocated sufficient resources for a harassment prevention effort
  • Leadership has allocated sufficient staff time for a harassment prevention effort
  • Leadership has assessed harassment risk factors and has taken steps to minimize those risks

Based on the commitment of leadership, do you have the following in place?

  • A harassment prevention policy that is easy-to-understand and that is regularly communicated to all employees
  • A harassment reporting system that employees know about and is fully resourced and which accepts reports of harassment experienced and harassment observed
  • Imposition of discipline that is prompt, consistent, and proportionate to the severity of the harassment, if harassment is determined to have occurred
  • Accountability for mid-level managers and front-line supervisors to prevent and/or respond to workplace harassment
  • Regular compliance trainings for all employees so they can recognize prohibited forms of conduct and know how to use the reporting system
  • Regular compliance trainings for mid-level managers and front-line supervisors so they know how to prevent and/or respond to workplace harassment

Additional considerations:

  • The organization conducts climate surveys on a regular basis to assess the extent to which harassment is experienced as a problem in the workplace
  • The organization has implemented metrics for harassment response and prevention in supervisory employees’ performance reviews
  • The organization conducts workplace civility training and bystander intervention training
  • The organization has partnered with researchers to evaluate the organization’s holistic workplace harassment prevention effort

Checklist Two: An Anti-Harassment Policy An anti-harassment policy is a key component of a holistic harassment prevention effort. Consider the following::

  • An unequivocal statement that harassment based on any protected characteristic will not be tolerated
  • An easy-to-understand description of prohibited conduct, including examples
  • A description of a reporting system – available to employees who experience harassment as well as those who observe harassment – that provides multiple avenues to report, in a manner easily accessible to employees
  • A statement that the reporting system will provide a prompt, thorough, and impartial investigation
  • A statement that the identity of an individual who submits a report, a witness who provides information regarding a report, and the target of the complaint, will be kept confidential to the extent possible consistent with a thorough and impartial investigation
  • A statement that any information gathered as part of an investigation will be kept confidential to the extent possible consistent with a thorough and impartial investigation
  • An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred
  • An assurance that an individual who submits a report (either of harassment experienced or observed) or a witness who provides information regarding a report will be protected from retaliation from co-workers and supervisors
  • A statement that any employee who retaliates against any individual who submits a report or provides information regarding a report will be disciplined appropriately
  • Is written in clear, simple words, in all languages commonly used by members of the workforce

Checklist Three: A Harassment Reporting System and Investigations A reporting system that allows employees to file a report of harassment they have experienced or observed, and a process for undertaking investigations, are essential components of a holistic harassment prevention effort. Consider the following:

  • A fully-resourced reporting process that allows the organization to respond promptly and thoroughly to reports of harassment that have been experienced or observed
  • Employer representatives who take reports seriously
  • A supportive environment where individuals feel safe to report harassing behavior to management
  • Well-trained, objective, and neutral investigators
  • Timely responses and investigations
  • Investigators who document all steps taken from the point of first contact and who prepare a written report using guidelines to weigh credibility
  • An investigation that protects the privacy of individuals who file complaints or reports, individuals who provide information during the investigation, and the person(s) alleged to have engaged in harassment, to the greatest extent possible
  • Mechanisms to determine whether individuals who file reports or provide information during an investigation experience retribution, and authority to impose sanctions on those who engage in retaliation
  • During the pendency of an investigation, systems to ensure individuals alleged to have engaged in harassment are not “presumed guilty” and are not “punished” unless and until a complete investigation determines that harassment has occurred
  • A communication of the determination of the investigation to all parties and, where appropriate, a communication of the sanction imposed if harassment was found to have occurred

Checklist Four: Compliance Training A holistic harassment prevention effort provides training to employees regarding an employer’s policy, reporting systems and investigations. Consider the following:

Structural Principles

  • Supported at the highest levels
  • Repeated and reinforced on a regular basis
  • Provided to all employees at every level of the organization
  • Conducted by qualified, live, and interactive trainers
  • If live training is not feasible, designed to include active engagement by participants
  • Routinely evaluated and modified as necessary

Content of Compliance Training for All Employees

  • Describes illegal harassment, and conduct that, if left unchecked, might rise to the level of illegal harassment
  • Includes examples that are tailored to the specific workplace and the specific workforce
  • Educates employees about their rights and responsibilities if they experience conduct that is not acceptable in the workplace
  • Describes, in simple terms, the process for reporting harassment that is experienced or observed
  • Explains the consequences of engaging in conduct unacceptable in the workplace
  • Content of Compliance Training for Managers and First-line Supervisors
  • Provides easy-to-understand and realistic methods for dealing with harassment that they observe, that is reported to them, or of which they have knowledge or information, including description of sanctions for failing to use such methods
  • Provides clear instructions on how to report harassing behavior up the chain of command, including description of sanctions for failing to report
  • Encourages managers and supervisors to practice “situational awareness” and assess the workforces within their responsibility for risk factors of harassment

The EEOC reiterates that the above checklists are “meant to be a useful tool in thinking about and taking steps to prevent harassment in the workplace, and responding to harassment when it occurs. Employers cannot let their guards down for a single moment. Review the above points and if you have not implemented an effective policy it would be in your best interest to do so immediately.

New Pending Laws!

March 19, 2017

Each legislative session, there are a number of employment-related bills introduced — some of which are helpful for California employers (and almost always get killed in committee early on) and others which are bad for California employers.  Here is a list of notable bills that have been introduced this session:

AB 5 – This bill, known as the “Opportunity to Work Act” would add section 559 to the Labor Code and require employers with 10 or more employees to offer additional hours to existing non-exempt employees before hiring new employees (including subcontractors and/or staffing agency employees).  The bill would not require employers to offer additional hours to an employee if doing so would necessitate the employee working overtime and being owed overtime compensation.  The bill would allow employees to sue in court for violations and to recover attorneys’ fees if they prevail.  The City of San Jose adopted a similar law last year, and the Cities of San Francisco and Emeryville have similar ordinances in place for retail employees.

AB 46 – This bill would amend Labor Code 1197.5 (equal pay law), which prohibits employers from paying a lower wage rate to employees on the basis of gender, race, or ethnicity.  This bill would clarify that these provisions apply to both public and private employers.

AB 168 – This bill is one that we’ve seen before and thus far, the legislature has not been successful in getting the bill signed into law.  Being a determined bunch, they are trying again.  This bill would prohibit employers from seeking prior salary information from applicants and would also require employers, upon request, to provide the pay scale for a position to an applicant.

AB 1008 – This bill is a “ban the box” measure and would amend FEHA to make it an unlawful practice for an employer to inquire about an applicant’s criminal conviction history (on an employment application or otherwise) prior to making a conditional job offer.  An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s prior conviction of a crime must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  If the employer makes a preliminary decision that the applicant’s conviction history disqualifies him or her from employment, the employer shall notify the applicant of this preliminary decision in writing and (1) identify the conviction at issue; (2) provide a copy of the conviction history report; and (3) provide the applicant at least 10 business days to respond and to either challenge the accuracy of the information and/or provide evidence of mitigation or rehabilitation (defined by the bill to mean evidence showing that at least one year has elapsed since release from prison without subsequent conviction of a crime, evidence showing compliance with terms and conditions of parole, and/or any other evidence of present fitness such as letters of reference). If the applicant provides such evidence, the employer shall not disqualify the applicant from employment.  If an employer does decide to deny employment based on a criminal conviction, the employer must notify the applicant in writing and disclose information concerning any existing procedure the employer has to challenge the decision or request reconsideration, whether the applicant may be eligible for other employment or occupation with the employer, the earliest date the applicant may reapply for a position of employment, and the employee’s right to file a complaint with the Department of Fair Employment and Housing.

AB 442 – This bill would limit state enforcement actions for certain non-serious OSHA violations against small businesses and microbusinesses by providing that such actions may not be commenced unless the agency first gives the employer notice of the violation and 30 days to cure.

AB 281 – This is a favorable bill that would amend PAGA by expanding employers’ right to cure alleged violations prior to an employee being permitted to file a lawsuit against the employer.  The bill would exclude only alleged health and safety violations from the right to cure provision, and the bill would expand the time period for an employer to cure violations from 33 days to 65 days.  Finally, the bill would provide that only an employee who has actually suffered from an alleged violation may recover civil penalties.

AB 1429 – This bill would amend PAGA to limit actions for PAGA penalties to claims alleging violations of Labor Code 226, 226.7, 510, or 512.  However, the bill also would eliminate the existing right to cure provisions of PAGA.  I suspect this bill will undergo amendments.

AB 1430 – This bill is yet another effort to amend PAGA.  This bill would greatly limit employees’ ability to sue under PAGA by providing that an employee may only file a civil lawsuit if the employee first provides notice of the alleged violations to the Labor Workforce Development Agency AND receives a notice from the agency stating that the agency determines that there is a “reasonable basis” for the lawsuit.  The bill requires the agency to investigate charges within 120 days of receipt and issue a determination as to whether or not there is a reasonable basis for a lawsuit.  If the agency determines that there is a reasonable basis or fails to issue any determination within 120 days, the employee can file suit.

AB 1173 – This bill would allow employees in the retail industry, with approval of their employers, to work an alternative workweek schedule of 10 hours per day/40 hours per week without payment of overtime during the holiday season (November to January).

AB 353 – This bill would allow private employers to establish and maintain a policy that provides for preferential hiring and retention of veterans.

AB 568 – This bill would require school districts and community colleges to provide paid maternity leave.

AB 1099 — This bill would require an employer who allows a patron to pay for services by debit or credit card to also accept a debit or credit card for payment of gratuity, payable not later than the next regular payday.

AB 1174 – This bill would make California a “right to work” state by prohibiting an employee from being required, as a condition of employment, to contribute financial support to a union.

SB 62 – This bill would amend the California Family Rights Act by expanding the list of family members for whom an employee may take up to 12 weeks off to provide care.  The expanded definition would include grandparents, grandchildren, siblings, domestic partners, and adult children.  There have been prior unsuccessful attempts to sign similar bills into law.

SB 63 – This bill is very similar to a bill that was vetoed by Governor Brown last year.  The bill would require California employers with 20 or more employees to provide up to 12 weeks of job-protected leave to eligible employees to care for/bond with a new child.  California law (CFRA) already provides for such leave for employees working for large employers (50 or more employees).  This bill would expand the leave requirements to smaller employers.

SB 482 – This bill would permit employers in the home health care industry to agree with a live-in domestic employee that a regular period of up to 8 hours of sleep time may be excluded from compensable hours worked. This bill is intended to respond to industry concerns caused by the California Supreme Court’s recent decision in Mendiola v. CPS Security Solutions.

SB 524 – This bill would establish a limited affirmative defense for employers in wage lawsuits in circumstances where the employer proves that it relied in good faith on a published enforcement policy or opinion letter of the DLSE.  Similar bills have failed in the past.

I will keep you posted as to significant developments.

Three Important Labor Issues Under Trump!

March 13, 2017

We have had some inquiries regarding how some things may change with Trump in office. I am ONLY addressing employment related topics.

With the above in mind, in my opinion, there are about three of the top labor and employment law issues to watch in the beginning of the Trump administration. For now, they include:  (1) the U.S. Department of Labor’s (“DOL”) minimum salary requirements for overtime compensation; (2) mandatory, federal paid maternity leave; and (3) more rigorous state and local laws in the labor and employment arena.

DOL Salary Test

Last year, the DOL raised the federal salary requirements for exempt employees to $47,476 annually. This regulation is currently stayed based on a Texas court’s injunction (which is pending appeal before the Fifth Circuit).  It is unclear what the Trump administration will do with this regulation.  It is possible that President Trump and newly appointed Labor Secretary Acosta may completely repeal this regulation.  They may also push Congress for a statute providing for a lower salary threshold, thereby decreasing the burden on employers for meeting the “salary basis” test for overtime exemption purposes. This area is likely to get more attention once Secretary Acosta is confirmed (which is very probable).

Paid Family Leave

President Trump is generally against additional regulations and employer mandates.  However, Ivanka Trump, who is a very strong advocate for paid family leave, is the most influential First Daughter in modern history and will be a strong voice on the paid maternity leave issue.  If Trump and his daughter can convince Congress to get behind them, employers may be subject to a new mandatory federal requirement that calls for up to six (6) weeks of paid maternity leave for working mothers.  The paid portion of this leave would likely be funded by employer and employee contributions, similar to the current paid leave program in California.

State and Local Regulations

Finally, employers operating in typically regarded “employee-friendly” states (like California) should expect the state legislatures to play an activist role on behalf of employees and enact a variety of additional legal protections to curb President Trump’s efforts at rolling back many of the Obama Executive Orders and other initiatives.  We expect the California Legislature to introduce many employment related bills.  We also expect liberal municipalities like San Francisco, Santa Monica, and others to continue to enact employment regulation to provide greater protections for workers in those cities.  Only time will tell.

On another note, and based on the new administration’s attitude toward illegal immigration, please make sure your I-9s are correct and your hiring practices are tight! If you have any concerns in this area let us know and we can conduct an HR Audit regarding both. If you have any questions about the I-9s email me at paaerrep@aol.com.

Commissioned Employees Must Be Paid Separately for Rest Breaks

March 6, 2017

Here we go again! Last week, a California Court of Appeal issued its decision in Vaquero v. Stoneledge Furniture LLC, holding that an employer violated California law by failing to pay commissioned employees for rest breaks.  As you know, California law requires that employees be provided with a paid 10-minute rest break for each four hours, or major fraction thereof, worked.  In the above case, the employer, operates retail furniture stores in California, provided rest breaks to its sales associates but the court held that the employer’s commission pay plan did not compensate associates for these rest breaks.  The employer’s commission plan provided that associates would be paid a guaranteed minimum hourly rate ($12 per hour) for all hours worked and that this minimum would operate as a draw against commissions.  Thus, if an associate’s earned commissions exceeded the minimum guarantee, the associate would be paid the amount actually earned.  If the associate did not earn more in commissions than the minimum draw, then the associate would be paid the minimum draw.  The plan further provided that the draw would operate as an advance against future commissions.  However, the system operated such that an employee was never paid less than at least the minimum guaranteed hourly rate for all hours worked.

Two former sales associates filed a class action against the furniture retailer, alleging that the company failed to compensate employees for rest breaks.  The trial court granted summary judgment in favor of the employer, finding that the commission pay plan did compensate employees for rest breaks because rest breaks were included in the employees’ hours worked and the employer paid employees the greater of (1) a minimum hourly rate for all hours worked (including rest break time), or (2) earned commissions.

Unfortunately, the Court of Appeal overturned the trial court’s ruling and held instead that the employer’s pay plan did not properly compensate employees for rest break time.  The court cited the rest period provision of the applicable wage order, which states that “authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”  The court held that because the pay plan’s minimum guarantee operated as a draw against commissions, the minimum guarantee paid by the employer was just an advance that was subject to claw back, or deduction, from future commission wages.  Because of this, the court held that the pay system violated California law and did not properly compensate employees for rest break time.  The court relied on cases involving employees paid on a piece rate where the courts held that employees paid on a piece rate must be separately compensated for rest break time and other non-piece rate work time.  Those cases are of course materially different because the piece rate workers were not paid at all for non-piece rate work time.  By contrast, in this case, employees were guaranteed minimum pay of at least $12 per hour for all hours worked, which included rest break time.  The fact that the guaranteed minimum operated as draw against commissions (meaning successful employees could earn more than the guaranteed minimum but not less) does not change the fact that employees were provided guaranteed pay for rest break time.  With this in mind, it is my opinion that the Court of Appeal got this one wrong.  Unfortunately, the Court of Appeal’s opinion is binding on California trial courts.

Based upon this decision, if you employ commissioned salespersons (inside sales because outside sales to my knowledge are still considered to be exempt) in California, you should review your commission pay plan to ensure that covered employees are paid at least the minimum wage for rest break time and that this pay is not subject to deduction or forfeiture based on the plan operating as a draw against commissions.  The safest manner of doing this is to provide a guaranteed minimum plus commissions, rather than a pure draw against commissions.