Transgender Restrooms: An Update!

March 26, 2018

The issue of “transgender restrooms” has been on the lips of newscasters, politicians, employers and employees for the past few years. It is not a new subject and now there is not only some general guidance on the issue but some legislation as well. New, and not so new, legislation have been proposed in a number of states including Illinois, South Dakota, Washington, and Missouri, that aim to restrict the access of transgender people to bathrooms and locker rooms.

Many of these bills focus on public facilities and, frequently, the rights of students under Title IX of the Civil Rights Act of 1964. These bills while addressed to the public sector, raise important questions for employers. Indeed, employers with increasing frequency are navigating “the restroom question” in their workplaces.

To guide employers through this issue, both the Federal government and certain states have issued guidance. The California Department of Fair Employment and Housing released its own set of bathroom-related guidelines. The guidelines also addressed a number of other transgender employment related topics as well. No surprise here.

The DFEH guidelines provide that “all employees have a right to safe and appropriate restroom facilities.” The guidelines go on to instruct employers that transgender employees have the right to use a restroom or locker room that corresponds to the employee’s gender identity regardless of the employee’s assigned sex at birth. The guidelines underscore that there is not a particular medical or legal event required for an employee to be transgender, and that transgender employees should not be required to show proof of medical or legal status changes in order to be accommodated appropriately.

The DFEH notes that employers should also consider offering a single-occupancy restroom option. Such a bathroom ensures employee privacy. The DFEH guidelines further provide that if an employer provides a single-occupancy bathroom, it must make clear that use of this restroom is voluntary. Employees should not be required to use a single occupancy restroom. A practical benefit of offering a single-occupancy restroom option is that it provides an alternative restroom for employees who do not wish to share a restroom with a transgender coworker.

The instructions provided by the DFEH align with the U.S. Occupational Safety and Health Administration (OSHA). OSHA’s Guidelines provide that transgender employees must be provided access to the restroom that matches their gender identity. OSHA notes that refusal to provide such access can result in health problems and potential liability.  Like the DFEH, OSHA also recommends providing a single-occupancy restroom, which employees can use who are uncomfortable with using gendered restrooms.

This guidance of the DFEH and OSHA underscores that Employers should increase their awareness of and sensitivity to issues related to gender identity and expression in the workplace. Employers should also continue to evaluate and update their internal policies, practices and procedures with an eye towards these state and federal guidelines.

I am writing this article to also update my trainings on sexual orientation which is a training that is now required for California employers effective January 1, 2018. In trainings over the past few months (and quite frankly before this year) this issue has regularly been brought up. I have recently become aware of the DFEH guidelines and want to ensure that I get the proper information out there. For some, this is not going to be comfortable, however keep in mind that we have to be respectful of others in the workplace to ensure a harmonious workplace. These laws are put in place for a reason and they need to be respected regardless of one’s personal feelings.

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New Laws on the Horizon! NOT Good News!

March 19, 2018

Well, here is more bad news for employers in the state of California. Hopefully many of these will not pass but it never ceases to amaze me on far these legislatures will go. Let’s keep our fingers crossed.

AB 2841 (Paid Sick Leave Expansion):  This bill would expand the current paid sick leave law by requiring employers to provide more paid sick leave to employees.  Under current law, employers must allow employees to accrue at least one hour of paid sick leave for every 30 hours worked (but may limit an employee’s use of sick leave to 3 days/24 hours per year) and may impose a carryover accrual cap of 6 days/48 hours.  Alternatively, an employer may provide at least 3 days/24 hours of paid sick leave “up front” to employees (rather than allowing them to accrue it over time) allow employees to take up to 5 days (40 hours) of paid sick leave per year (up from the current 3 days/24 hours) and to accrue up to 10 days (80 hours) of paid sick leave.  Under this bill, an employer who front loads paid sick leave would have to provide at least 5 days/40 hours up front.  An employer who allows employees to accrue paid sick leave but wishes to impose a cap on carryover and accrual of unused sick leave could not use a cap that is less than 10 days/80 hours.

AB 2069 (Employment Protection for Medical Marijuana Users):  This bill would amend the Fair Employment and Housing Act to make it an unlawful employment practice for an employer to take adverse action against an applicant or employee because of a positive drug test for marijuana (by a medical marijuana card holder) or because of one’s status as a medical marijuana card holder.  The bill makes clear that an employer may still discipline an employee for being under the influence while working or on the employer’s property, but would change the law in California with respect to whether an employer must accommodate medical marijuana use.  The California Supreme Court has held that the answer is no, and that is the current law in California. This bill would undo the California Supreme Court precedent and give employment protections to medical marijuana users.  The law would provide an exception for employers who would lose a license-related or monetary benefit under federal law if they hired or did not fire an individual who tested positive for marijuana.

SB 937 (Lactation Accommodation):  California already has a law requiring employers to accommodate the break needs of lactating employees.  At least one city (San Francisco) has enacted its own more detailed local ordinance on the subject.  This statewide bill would impose more detailed requirements on employers similar to those under the San Francisco ordinance and guidance on the subject under federal law.  More specifically, the bill would require employers to provide a lactating employee with a lactation room (other than the bathroom) that (1) is close to the employee’s work area, (2) is free from intrusion, (3) is shielded from view, (4) is free of toxic or hazardous chemicals, (5) contains a surface on which to place a breast pump and similar items, (6) has a place to sit, and (7) has access to electricity.  The employer would also have to ensure that the employee has access to a sink and refrigerator in reasonable proximity to the workspace.  Employers would be required to develop a written lactation accommodation policy and to respond to lactation accommodation requests within 5 days.  Employers with less than 5 employees who believe they cannot comply with the law could petition the Labor Commissioner for an exemption based on undue hardship (good luck with that).  The bill of course provides for penalties for non-compliance, and avenues of recourse through the Labor Commissioner and/or a private right of action with recovery of attorneys’ fees to a successful plaintiff.  Interestingly, the bill goes even farther, in proposing to require the California Building Standards Commission to adopt new rules that would require the construction of a lactation accommodation space in new or remodeled buildings that are at least 15,000 square feet.  The bill also sets forth specific parameters for these newly constructed lactation rooms.

SB 826 (Female Representation on Corporate Boards of Directors):  This bill would require publicly held corporations with their principal place of business in California to have at least one female on their board of directors by December 31, 2019.  By 2021, the number would increase to 2 where the board has five members and to 3 where the board has 6 members.  Similarly, SB 984 would require that state boards and commissions be comprised of at least 50% women.

SB 1284 (Annual Pay Data Reporting):  Similar to an unsuccessful bill last year, this bill would require employers that are incorporated under the laws of the State of California with 100 or more employees to annually report to the Department of Industrial Relations certain information on earnings by race, gender, and ethnicity, beginning September 30, 2019 and annually thereafter.  This information would be shared with the Secretary of State, Department of Fair Employment and Housing, and another entity referred to as the Commission on the Status of Women and Girls.

AB 2946 (Expanded Limitations Period for DLSE Discrimination Complaints):  This bill would allow employees up to three years (instead of six months) to file a charge of discrimination with the DLSE.  The bill would also amend Labor Code section 1102.5 to allow for recovery of attorneys’ fees by a prevailing plaintiff (but not by a prevailing employer) in a whistleblower retaliation case.

AB 1870 (Expanded Limitations Period for DFEH Charges):  This bill would allow employees up to three years (instead of one year) to file administrative charges of discrimination/harassment/retaliation with the Department of Fair Employment and Housing.  Thus, the bill effectively would extend the statute of limitations for an employee to file a lawsuit against the employer to approximately 4 years from the alleged unlawful employment action.  This would impact employer records retention policies and expose employers to threats of stale legal claims that are made more difficult to defend based on the passage of time, fading memories, employee (witness) turnover, etc.

AB 1867 (Records Retention – Sex Harassment Complaints):  This bill would require employers with 50 or more employees to retain records of sexual harassment complaints for 10 years.

SB 1038 (Personal Liability for Retaliation):  This bill would provide for individual liability for retaliation under the Fair Employment and Housing Act.  Under current law, an individual may be held personally liable for harassment, but not for discrimination or retaliation.

SB 1300 (Failure to Prevent Discrimination/Harassment):  This bill would change existing law by providing that where an employee alleges a claim for failure to prevent discrimination/harassment, the employee need not prove the underlying discrimination or harassment occurred in order to state a valid claim.  Separately, the bill would also prohibit a release of FEHA claims as a condition of employment or continued employment or in exchange for a raise or bonus.  The bill would also prohibit an employer from requiring an employee to sign a non-disparagement agreement or other document that prevents the employee from discussing unlawful acts, including sexual harassment or any other unlawful or “potentially unlawful” conduct, in the workplace.  Finally, the bill would expand California’s sexual harassment prevention training requirements to apply to all employers regardless of size (currently the training requirement only applies to employers with 50 or more employees) and would require that all employees (not just supervisors, as under current law) be trained within 6 months of hire and every two years thereafter.  It would also expand the scope of the required training to include bystander intervention training.

SB 1343 (Sexual Harassment Prevention Training):  This bill would require employers with 5 or more employees to provide sexual harassment prevention training to all employees by 2020 and once every two years thereafter.  The DFEH would be required to make available a two-hour training video for employers to use.

SB 820 (Confidentiality Provisions in Settlement Agreements):  These bills would prohibit provisions in settlement agreements that prevent disclosure of factual information relating to claims of sexual harassment/assault/abuse and gender discrimination.

AB 2366 (Leave for Victims of Sexual Harassment):  This bill would prohibit employers from taking adverse action against employees who are victims of sexual harassment (or whose immediate family member is a victim of sexual harassment) for taking needed time off work to attend court proceedings or to seek treatment (or to provide assistance or support to an immediate family member in these circumstances).

AB 2613 (Increased Penalties for Payday Timing Violations):  Provisions of the California Labor Code require employers to pay their employees at certain intervals, generally (with some exceptions) twice per month on designated paydays.  Because there aren’t already enough avenues for employees to collect penalties against their employers for technical Labor Code violations, this bill would add even more penalties for a violation of the payday timing requirements.  Specifically, the bill would provide for “statutory” penalties of $100 per employee per day, up to seven days, for an initial late payment.  For subsequent or willful violations, the penalty would be $200 per employee per day, up to seven days.  The penalties would be recoverable by the Labor Commissioner or by employees in a civil action, and would be “in addition to” any other penalties the employees may be entitled to recover for the same violation under the Labor Code.

SB 1252 (Copies of Payroll Records):  This bill would provide that employees are entitled to be provided with copies of their payroll records (not just the right to inspect or copy them) upon request.

AB 2587 (Paid Family Leave/Use of Vacation):  Current law allows employers to require an employee to use up to two weeks of vacation prior to, and as a condition of, receipt of paid family leave benefits through the state.  This bill would disallow this practice.

AB 1885 (Undocumented Agricultural and Service Workers):  This bill would require the State of California to work with the United States government to try to create a guest worker program in California whereby undocumented agricultural or service industry employees would be granted a permit to live and work in California.

AB 2496 (Janitorial Workers/Employee Presumption):  This bill would create a rebuttable presumption that a worker is an employee rather than an independent contractor where the worker performs work for which a property service registration is required by law.

AB 1938 (Inquiries re Familial Status):  This bill is vague in current form, but would generally employers from inquiring about an applicant’s or employee’s familial status (having custody of a child under 18 years of age).

AB 3109 (Confidentiality and No Re-employment Provisions):  This bill would prohibit contract provisions (including settlement agreement terms) that limit a party’s right to free speech in connection with a public issue or that limit a party’s right to seek employment or re-employment in a given occupation or profession.

We will be tracking these bills and will keep you posted as to significant developments.

 


High Court Determines a New Method of Calculating Overtime!

March 10, 2018

Well, here we go again. Another wage & hour decision that will smack the heck out of California employers. A new California Court decision (Alvarado v. Dart Container Corp) will once again put employers at risk with lawsuits.

The issue presented involved how to calculate the overtime rate of pay under California law when a non-exempt, hourly employee is paid a flat “bonus” (e.g. $15 extra) for working on a weekend day.  In other words, the bonus was a type of shift differential or attendance bonus tied to working undesirable shifts.  Because no good deed ever goes unpunished, the employer got sued for providing extra compensation to the employees who worked on the weekend.  According to the plaintiffs, the employer did not properly calculate the overtime rate of pay during weeks in which the bonus was paid.  To be clear, this isn’t an employer who ignorantly did not know that bonuses (where non-discretionary) must be included in calculating the overtime rate.  On the contrary, the employer did include the bonuses in calculating the overtime rate.

According to plaintiffs, however, the employer just did not do it right.  The employer followed the well-publicized Fair Labor Standards Act (“FLSA”) method for calculating the overtime rate where extra forms of compensation (on top of the base hourly rate) are paid to an employee during a workweek.  Under that easy-to-follow method, the employer paid the employees their base hourly rate for all hours worked, added the bonus, and then paid overtime compensation for all overtime hours at the rate of .5 times [the employee’s total compensation divided by total hours worked].  On the face of it, it appeared to be a proper method. The California Court of Appeal thought so, finding in favor of the employer and holding that the employer properly compensated its employees under California law.

The California Supreme Court decided otherwise and held that the employer failed to properly compensate its employees for overtime compensation during pay periods where the weekend attendance bonus was earned.  The Court held that California law is different than the FLSA and more protective of employees than the FLSA (i.e. if we can interpret California law in a way that will result in a more favorable outcome for the employee than would result under the FLSA, then we’ll go with the more favorable interpretation).  From that reasoning, the Court held that where the extra compensation is a flat bonus that is not tied to production, such as the weekend work bonus at issue in this case, the overtime rate of pay must be calculated by dividing the bonus only by the employee’s non-overtime hours worked during the pay period (rather than by the employee’s total hours worked, including overtime hours).  The Court reasoned that this type of bonus is not tied to production or hours worked, but would be paid in the same amount regardless of how many hours the employee worked during the workweek.  Because of this, the Court stated that it would be unfair to include overtime hours when calculating the overtime rate of pay on the bonus.  [If overtime hours were included when dividing the bonus by hours worked, the overtime would be paid at a lower rate than if the overtime hours were not included.]  As such, the Court held that when calculating the overtime rate of pay on this type of bonus, the amount of the bonus compensation must be divided by the total number of non-overtime hours to derive an hourly rate, 1.5 times which would be paid for all overtime hours worked.

To make matters worse for California employers, the Court suggested in a footnote that a different method (e.g. the FLSA method) “may” apply where other types of bonuses/extra compensation is involved that is more closely tied to production and earned in part by working overtime hours, i.e. production bonuses, commission, hours-based bonuses, piece rate compensation.  In these circumstances, it “may” be appropriate to divide that type of extra pay by total hours worked (rather than just non-overtime hours) to calculate the overtime rate on the bonus.  The Court did not provide clear lines in this regard, however.  Incidentally, lack of clarity in the law is what led to Dart Container being sued in the first place.  No California statute, regulation, Wage Order, or case law clearly instructed that overtime compensation needed to be calculated in this manner.

Now what? Well, the reality of this development is that from a litigation risk perspective, California employers would be best off not paying bonuses or other forms of non-discretionary “extra” pay to non-exempt hourly employees.  If you pay extra compensation, and your employees work overtime, you will be at risk of being sued (typically in a class action) for not calculating the overtime rate of pay properly.  If you choose to continue paying bonuses and similar extra compensation to non-exempt employees, it would be advisable to have each type of bonus reviewed to determine the proper means of calculating overtime on that bonus.

This is going to create more litigation and headaches for employers.

Note: If you want information on our “Violence in the Workplace Program” which includes “Active Shooter” training please email me at paaerrep@aol.com.


An Aggressive Approach to Workers Comp Claims Management!

March 5, 2018

The following article was written by Stuart Baron, Esq. of Stuart Baron & Associates. Stu and I have been working together for a number of years now to tackle workers claims management. I asked him to write down a few thoughts so here they are!

               An Aggressive Approach to Workers Comp Claims Management

There is no question that a good and, where necessary, an in-depth medical diagnosis is critical to the success or failure of any workers’ compensation claim.  For most claims, a well-trained occupational doctor will be able to provide a comprehensive medical evaluation of the injury.  This will be an examination that properly documents the facts surrounding the injury coupled with a viable treatment plan that focuses getting the injured employee back on the job.  I would estimate this scenario will be true in at least 80% of the claims filed.

But then we have those claims that do not pass the “smell test.”  You have all seen them.  They are the “I fell down on the back part of the plant and no one saw it happen” claims.  “And now my back (or insert whatever body parts you wish) hurts and it is all work related.”  These usually happen about 15 minutes to an hour after their shift starts.  It also happens right after the employee has received a bad performance review and has been written up for a safety violation.

Then we have the ever-popular Post Termination claim.  These normally occur a week or later after the employee has left your employ either voluntarily or having been fired for cause. These claims usually come to you in the form of a letter from an attorney letting you know that your former employee suffered an injury and it is all your fault.  This even where you have had an exit interview that specifically asks if they have any work-related illness or injury that has not been reported to you.  The problem today is that we can defeat these claims–but at what cost? We are all seeing far too many claims settled for “nuisance” value in order to cut the carriers losses regardless of how defensible the claim is.

And finally, to add further insult to the claimed injury, we have the now rampant Cumulative Trauma or “I am wearing out” disease.  The problem here is that it hard to defend when there is no real meat to the claim.  The claim is usually “I hurt” but without being able to articulate what hurts and where.  Doctors have been prone to opine that there are, of course, medical findings and therefore it is most obviously work related.  We all know how the story goes from there.  Very little has been done in the past to counter this type of claim.  It is like trying to grab hold of a large balloon filled with water.  You simply cannot get a good grip on it.

Well, all that has changed.  US Healthworks has designed a next generation comprehensive and proactive approach to these claims.  It is called Coordinated Care Management (CCM) and is designed to provide a real-time, comprehensive medical evaluation and active follow up of these claims.  It encompasses a detailed medical history, a through medical evaluation of the claimed body parts, and a discussion of the causation of the alleged injury(s).  Is it really a viable compensable injury or is the employee just getting older and wearing out like the rest of us?  CCM, coupled with our FASTRAXX claims handling protocol, is enabling us to level the playing field and win more than we are losing.

       WE INVITE YOU TO JOIN US ON MARCH 29 FOR A WEBINAR DESCRIBING THIS NEW AGGRESSIVE APPROACH TO CLAIMS MANAGEMENT.

 You need only e-mail me at stu@sbalaw.net, and I will be sure to forward you the registration form information.  Please see the flyer on the back side of this month’s Hotline for more details….