The Labor & Employment Law Blog

Focusing on legal trends in data security, cloud computing, data privacy, and anything E

San Francisco Passes “Lactation in the Workplace Ordinance”

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On June 30, 2017, San Francisco’s Mayor Ed Lee signed an ordinance, providing employees in the City of San Francisco with additional lactation rights.  The “Lactation in the Workplace Ordinance,” will take effect on January 1, 2018 and applies to all City employees, including those who work part-time.  The ordinance is similar to existing state and federal law, but contains additional requirements.

What Does The Ordinance Require?

Location Specifics

Employers must provide a lactation location other than a bathroom that is in close proximity to the employee’s work area.  The location must be shielded from view and free from intrusion from co-workers and the public.   It must have the following features:

1)      Safe, clean, and free of toxic or hazardous materials;

2)      Contain a surface (e.g. a table or shelf) to place a breast pump and personal items;

3)      Contain a place to sit;

4)      Have a door that locks from within;

5)      Be at least 50 square feet; and

6)      Have at least one electrical outlet per lactation station.

The room must be located within 500 feet or two adjacent floors from the farthest employee it is designated to serve.  The employer must also provide a refrigerator where the employee can store breast milk and access to a sink with running water

The lactation location can be a room that is also used for other purposes, so long as the employer provides notice that the primary use of the room is for lactation which takes precedence over other uses.

An employer may be exempt from the ordinance’s requirements if it can establish that the requirements would impose an undue hardship (significant expense or operational difficulty in relation to the employer’s size, financial resources, nature, location, or physical space).

            Employer Policy

Employers must develop and implement a written Lactation Accommodation Policy.  The policy must:

1)      State that employees have a right to request lactation accommodation,

2)      Identify a process by which an employee may request lactation accommodation, (including how an employee may submit a request, a requirement that the employer respond within 5 business days, and a requirement that the employer and employee engage in an interactive process to determine the appropriate lactation breaks and location);

3)      If the employer is exempt from the ordinance’s requirements, the employer must state the basis for denial of the lactation accommodation; and

4)      Prohibit retaliation against an employee for exercising her rights under this ordinance.

The Lactation Accommodation Policy must be distributed to all employees upon hiring and offered to any employee who asks about or requests pregnancy or parental leave.  If the employer has an employee handbook or policies, the Lactation Accommodation Policy must be included.

Employer Record Retention Requirement

Employers are required to maintain specific records of requests for lactation accommodation made pursuant to the employer’s policy, for 3 years.

            Enforcement and Penalties

San Francisco’s Office of Labor Standards Enforcement (OLSE) is charged with enforcing the law and giving notices to correct.  After a one-year grace period, beginning January 1, 2019, the OLSE may impose administrative penalties up to $500 for each violation

Existing State and Federal Requirements

The ordinance combines and expands upon existing federal and state laws that already address lactation in the workplace.  (See 29 U.S.C §207(r); Cal. Labor Code 1030-1033.)  Among other expansions of the law, neither federal nor California law currently requires as many specific features of the lactation room, a formal written policy, or recordkeeping and retention.

Please consult legal counsel for details regarding the ordinance’s specific requirements.  We recommend reviewing and updating your existing lactation accommodation policies before January 1, 2018.

New Florida Law Allows Patients To Use More Potent Pot

Posted in New Legislation and Regulations

High times at Florida workplaces may or may not become more prevalent with a new law that allows the medical use of stronger marijuana by a greater number of patients.

The legal use of medical marijuana is not completely new there.  In 2014, Florida legalized the medical use of low-THC cannabis by patients who are terminally ill with less than a year to live.  In November 2016, Floridians went to the ballot box and voted in by a super majority the Medical Marijuana Legalization Initiative, also known as Amendment 2.  The passage of that ballot initiative allowed medical marijuana to be given to patients so long as a physician believes the medical benefits of using marijuana outweigh the potential health risks.

Read the full article at the HRUSA Blog here: http://blog.hrusa.com/blog/new-florida-law-allows-patients-to-use-more-potent-pot/.

San Francisco Adopts the “Parity in Pay” Ordinance – No More Inquiries About or Disclosures of Prior Salary

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

On July 19, 2017 Mayor Lee signed the Parity in Pay Ordinance.   Below is a brief summary of the Ordinance which will go into effect on July 1, 2018.

  • The Ordinance provides findings from the 2015 United States Census Bureau report that show that in San Francisco women are paid on average 84 cents for every dollar a man makes. Women of color are paid even less. African American women are paid only 60 cents to each dollar paid to men. Latinas are paid only 55 cents to each dollar paid to men. The Ordinance finds that the problematic practices of seeking salary history from job applicants and relying on their current or past salaries to set employees’ pay rates contribute to the gender wage gap by perpetuating wage inequalities across the occupational spectrum.
  • The Ordinance shall cover all Applicants within the geographic boundaries of the “City” (which is defined as both the city and county of San Francisco) and whose application, in whole or part, will be solicited, received, processed or considered, whether or not through an interview, in the City. However, the ordinance will not apply to a person applying for employment with their current employer.
  • “Employers” covered by the Ordinance include: any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, which is or should be required to be registered to do business in the City. Job placement and referral agencies and other employment agencies are also covered. Except for the City, other local, state and federal employers are not covered.

Prohibitions under the Ordinance.

  • An Employer shall not consider or rely on an Applicant’s Salary History as a factor in determining whether to offer employment to an Applicant or what Salary to offer an Applicant.
  • An Employer shall not inquire about an Applicant’s Salary History.
  • An Employer shall not refuse to hire or otherwise disfavor, injure, or retaliate against an Applicant for not disclosing his or her Salary History to the Employer.
  • An Employer shall not release the Salary History of any current or former employee to that person’s Employer or prospective Employer without written authorization from the current or former employee unless the release of Salary History is required by law, is part of a publicly available record, or is subject to a collective bargaining agreement.
  • “Salary” means an Applicant’s financial compensation in exchange for labor, including but not limited to wages, commissions, and any monetary emolument.
  • “Salary History” means an Applicant’s current and past Salary in the Applicant’s current position, or in a prior position with the current Employer or a prior Employer. Salary History does not include any objective measure of the Applicant’s productivity such as revenue, sales, or other production reports.
  • Where an Applicant voluntarily and without prompting discloses Salary History to a prospective Employer, or provides written authorization for such information to be disclosed from a former employer, nothing in the Ordinance prohibits the Employer from considering that voluntarily disclosed Salary History in determining Salary for such Applicant or verifying such Applicant’s Salary History. However, Salary History by itself shall not be used to justify paying any employee of a different sex, race or ethnicity less than such Applicant or prospective employee for doing substantially similar work under similar working conditions in accordance with California Labor Code section 1197.5.

Notice and Posting Requirements.

  • Before the Ordinance goes into effect in July 2018, the San Francisco Office of Labor Standards Enforcement (OLSE) shall publish and make available to Employers in English, Spanish, Chinese, and all languages spoken by more than 5% of the workforce in San Francisco, a notice suitable for posting by Employers in the workplace informing Applicants and employees of their rights under the Ordinance.
  • Employers must post the OLSE notice in a conspicuous place at every workplace, job site, or other location in the City or on City property under the Employer’s control and frequently visited by their employees or Applicants, and shall send a copy of the notice to each labor union or representative of workers, as applicable.

Enforcement and Penalties.

  • From July 1, 2018 through June 30, 2019, the OLSE will issue a warning and notice to correct if the Ordinance is violated.
  • Starting July 1, 2019, for any subsequent violation other than a first violation (including a first violation occurring before that date), the OLSE may impose an administrative penalty of no more than $100 that the Employer must pay to the City for each employee or Applicant to whom the violation occurred. Thereafter, for subsequent violations occurring within 12 months of that violation, the penalty may increase to no more than $200 for the second violation, and to no more than $500 for each additional violation. The penalty shall be payable to the City for each employee or Applicant whose rights were violated.
  • The OLSE may also initiate an administrative action against an Employer. Before the effective date of the Ordinance in July 2018, the OLSE will establish rules and procedures for the administrative process. The OLSE may also refer matters to the City Attorney who may initiate a civil action.

More details regarding the Parity in Pay Ordinance can be found at: https://sfgov.legistar.com/View.ashx?M=F&ID=5282302&GUID=9B58E3DF-EBD7-46FC-BFFB-32E073CFF9E0

Revised Form I-9 Issued by the USCIS

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

On July 17, 2017, the United States Citizenship and Immigration Service (“USCIS”) released a revised version of the Form I-9, Employment Eligibility Verification.  Instructions for how to download Form I-9 are available on the USCIS Form I-9 page. Employers can use this revised version immediately or continue using Form I-9 with a revision date of 11/14/16 N through September 17th.  However, beginning September 18, 2017, employers must use the revised form with a revision date of 07/17/17 N.  Also, employers must continue following existing storage and retention rules for any previously completed Form I-9.

The USCIS publication regarding the revised form summarizes the changes to the Form I-9 as follows:

Revisions to the Form I-9 instructions:

  • We changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • We removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • We added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • We combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • We renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

The USCIS also revised the Handbook for Employers: Guidance for Completing Form I-9 (M-274), which helps employers navigate the requirements for compliance with Form I-9 obligations.

More information can be obtained at: https://www.uscis.gov/news/alerts/revised-form-i-9-now-available.

Doing the [Porta]Potty Dance: Fair Employment and Housing Council Votes to Adopt Emergency Rule regarding Signage for Single User Non-Flush Toilets to Resolve Conflict with OSHA Regulations

Posted in Discrimination, Employee Privacy Rights, Labor Law, New Legislation and Regulations, Wage & Hour

At its meeting on July 17, 2017, the Fair Employment and Housing Council (FEHC) addressed a conflict between its regulations and OSHA’s regulations, regarding gender-neutral restroom facilities.

AB 1732, enacted as Health and Safety Code section 118600, which applies to single-user toilet facilities.  Section 118600 defines single-user toilet facilities as those that have only one “water closet” and (zero or) one urinal.  All such single-user toilet facilities must be re-designated as “gender neutral” under this new law.  OSHA’s regulations, under title 8 section 1526 (construction jobsites), section 3364 (general industry), section 3457 (agricultural operations), and section 5192 (hazardous waste operations and emergency response) conflict with this rule, to the extent that they require employers to provide a certain number of separate toilet facilities for males and females based on the numbers of employees of each sex.

The related DFEH Regulation, section 11034(e)(2)(B), currently reads “Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.”  This is consistent with Health and Safety Code section 118600. 

OSHA has announced, on its website here <https://www.dir.ca.gov/dosh/toilet-facilities-FAQ.html> that it will enforce its regulations in a manner to make AB1732 consistent with OSHA regulations for flush toilets: “Health and Safety Code section 118600 takes precedence over the requirements of Title 8 sections 1526, 3364, 3457, and 5192 in cases where employers provide single-user toilet facilities with flush toilets for their employees. In those situations, Cal/OSHA still enforces the total numbers of toilet facilities required for males and females combined, as well as the individual numbers required for males and females separately, as provided in Title 8 sections 1526, 3364, 3457, and 5192, but no longer enforces the requirement that a toilet facility with a flush toilet be designated as single-gender if it is single-user.”

In that same FAQ, however, OSHA states that “toilet facilities that are multiple-user or that contain other than a flush toilet (e.g., chemical toilets, recirculating toilets, combustion toilets, biological toilets, and sanitary privies) are not covered by section 118600 and must still be provided separately for males and females.” Therefore, OSHA will enforce its regulations for non-flush toilets – like a port-a-potty – for those industries.

The FEHC proposed an amendment to FEHA regulation, section 11034(e)(2)(B), on an emergency basis, to eliminate the conflict with OSHA regulations with respect to privies, chemical toilets, and other “non-water carriage disposal facilities” (toilets that do not flush with water).  Apparently due to very high percentage of men in these industries, there are concerns about health and safety if such portable toilets out in the field were required to be designated as gender-neutral.

Section 11034(e)(2)(B) currently reads:

B.  Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.

To address this inconsistency with OSHA’s regs, the council considered, and voted to submit an emergency rulemaking proposal to the Office of Administrative Law for an emergency rulemaking to modify 11034(e)(2)(B).

The proposed new language that will be submitted to the OAL is underlined:

11034(e)(2)(B) Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities such as “Restroom” “Unisex” “gender Neutral” “All Gender Restroom,” etc.  This subsection does not apply to nonwater carriage disposal facilities in those work places covered by California Code of Regulations, title 8, sections 1526 (construction), 3364 (general industry), 3457 (agricultural operations), and 5192 (hazardous waste operations and emergency response) which require employers to provide separate toilet facilities for males and females based on the numbers of employees of each sex. However, all other subsections of this section apply to such employers.

The intent of the last sentence is to make clear that persons may still use the facility corresponding to the employee’s gender identity or expression (subsection (e)(2)(A)), regardless of the signage on the door.

The Council voted that the department should submit this proposed change to the OAL for emergency rulemaking authorization immediately.

Once submitted, the proposed rule will undergo a 5-day public comment and OAL review. If granted by the OAL, the emergency rule will become effective upon filing with the Secretary of State and is effective for 180 days.  This gives the agency time to make the emergency regulation permanent through its regular rulemaking process.

Employers May Not Have To Share Tips With Employees

Posted in Employment Contracts and Agreements, Wage & Hour

Introduction

Imagine this scenario – you have hired a catering company to cater an event for you. The company performs its obligations, providing both the food and catering staff to ensure your attendees are well fed and taken care of. Happy at the conclusion of the event, you pay the company in full, and provide extra payment to the catering company in the form of a tip to demonstrate your appreciation. Who owns that tip – the catering company hired to provide the services, or the catering staff who worked the event?

On June 30, 2017, in Marlow v. The New Food Guy, Inc. d/b/a Relish Catering, the U.S. Court of Appeals for the Tenth Circuit determined that the Fair Labor Standards Act (“FLSA”) does not require an employer to share tips earned by an employee with that employee, as long as the employee is paid more than minimum wage.

To read the full article, visit the HRUSA blog at http://blog.hrusa.com/blog/employers-may-not-have-to-share-tips-with-employees/.

DON’T FORGET…….California’s Transgender Identity and Expression Regulations Go Into Effect July 1, 2017

Posted in Discrimination, Employee Privacy Rights, Harassment, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination, Wage & Hour

The new regulations that expand existing protections under California’s Fair Employment and Housing Act (FEHA) for transgender individuals and others go into effect July 1, 2017.  As California employers know, FEHA prohibits harassment and discrimination against individuals on the basis of many protected classes, including gender, gender identity, and gender expression.  Below is a brief summary of the highlights of the new regulations.

  • The regulations clearly define and distinguish between “transgender,” “gender expression,” and “gender identity.”  They are not the same.
    • “Transgender” refers to a person whose gender identity differs from the person’s sex assigned at birth.  The person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  Also, a transgender individual may or may not identify as “transsexual.”
    • “Gender expression” refers to a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
    • “Gender identity” refers to each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.Beth-West-15_web
  • The regulations explain the process of “transitioning” which does not have to, but may include hormone therapy, surgeries, or other medical procedures.
  • The regulations state it is unlawful to deny employment to an individual based wholly or in part on the individual’s sex, gender, gender identity, or gender expression.  It is also unlawful to discriminate against an individual who is transitioning, has transitioned, or is perceived to be transitioning.
  • The regulations include prohibitions against employers seeking proof of an individual’s sex, gender, or gender identity or expression.   However, for recordkeeping purposes, an employer may request an applicant to provide the information solely on a voluntary basis (e.g. when collecting data for EEO reporting purposes).  Also, an employer is permitted to use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally mandated obligation.  Further, nothing precludes an employer and employee from communicating about the employee’s sex, gender, gender identity, or gender expression when the employee initiates communication with the employer regarding the employee’s working conditions.
  • The regulations explain that employers cannot use a Bona Fide Occupational Qualification (BFOQ) defense to justify any different treatment (discrimination) against an individual merely because the individual is a transgender or gender non-conforming individual.
  • The regulations provide that equal rest periods must be provided to employees without regard to sex, and that equal, safe and adequate facilities must be provided to employees without regard to sex.
  • The regulations provide that employers must permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth and without having to show proof of any medical treatment or other identity, to use a particular facility.  However, employers with single-occupancy facilities [e.g. restrooms] under their control shall use gender-neutral signage for those facilities.  Also, to respect the privacy of all employees, employers shall provide feasible alternatives such as locking toilet stalls, staggered schedules for showering, and shower curtains to ensure privacy.
  • The regulations prohibit an employer from imposing any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless the employer can establish a business necessity under the regulations.
  • The regulations provide that if an employee requests to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, an employer who fails to abide by the employee’s stated preference may be liable under FEHA, except in the case where an employer is permitted to use an employee’s gender or legal name when necessary to meet a legally-mandated obligation.

What Should Employers Do?  The overarching message in the workplace should be that a person’s sexual identity and sexual expression should be respected and that everyone should comply with company policies and applicable law.  Employers should review and update their policies if necessary to comply with the new regulations.  They should also train their managers and supervisors on the new regulations to ensure that they are aware of them and act accordingly.  Regardless of their political or moral viewpoint on the issue, the regulations are law and an employer (through its managing agents) must comply.  Remember that the attorneys in Weintraub Tobin’s Labor & Employment Department are always available to assist in both policy review and supervisor and management training.

For a copy of the text of the regulations go to:  https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalTextRegTransgenderIdExpression.pdf

No Recording Policy Violates The NLRA

Posted in Employee Privacy Rights, Employment Contracts and Agreements

It stands to reason that employers may not want employees recording conversations in the workplace.  Recording conversations could discourage the free flow of open ideas.  The recordings could also contain confidential or sensitive information that the employer does not want floating around the digital universe.  In some states, recording workplace conversations may even be illegal if not all parties consent to it.  Mindful of these concerns, employers may wish to enact policies precluding video or audio recording at work.  According to the Second Circuit, however, employers who do so risk violating the National Labor Relations Act (“NLRA”) if their policies are overbroad.  In a June 1, 2017 summary order, the court upheld a National Labor Relations Board’s Order finding that Whole Foods Market, Inc.’s policy did just that.

To read the full article, visit the HRUSA blog at http://blog.hrusa.com/blog/no-recording-policy-violates-the-nlra/.

New Laws Affecting New York City Retail And Fast Food Workers

Posted in Labor Law, New Legislation and Regulations

On May 30, 2017, the Mayor of New York City (“NYC”) signed into law five bills related to workplace reform in the retail and fast food industries. These laws are set to take effect on November 26, 2017.

New Laws Applicable to Retail Industry in NYC

Intro 1387 (On-Call Scheduling), bans the practice of on-call scheduling for retail employees in NYC. The law applies only to retail employers with twenty or more employees at one or more stores within NYC. Under this new law, an employer will be prohibited from (1) scheduling a retail employee for an on-call shift; (2) cancelling a work shift with fewer than 72 hours’ notice; (3) requiring a retail employee to work with fewer than 72 hours’ notice, unless the employee consents to working in writing; and (4) requiring a retail employee to contact an employer to confirm whether the employee should report for his/her scheduled shift in the 72 hours before the start of the shift. However, a retail employer is permitted to make schedule changes or cancel shifts within the 72 hour window if it is to give an employee time off or to allow an employee to voluntarily trade shifts with another employee or if the employer’s operations cannot begin or continue.

Read the New Laws Applicable to the Fast Food Industry in NYC here: http://blog.hrusa.com/blog/new-laws-affecting-new-york-city-retail-and-fast-food-workers/

Is Panic Really the Best Choice? One Lawyer’s Approach to Analyzing “Substantially Similar Work” Under the California Fair Pay Act

Posted in Employment Contracts and Agreements, Labor Law, New Legislation and Regulations, Wage & Hour

Since the passage of the California Fair Pay act in late 2015 (effective January 1, 2016) and its recent amendments, many employers and commentators have criticized the statute for imposing a vague and dangerous standard on California employers.

The California Fair Pay Act replaces the former “equal work” standard of the Equal Pay Act with a “substantially similar” standard.   The California Fair Pay Act (Labor Code section 1197.5) states:   “(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions …”. Chuck-Post-07_web

Some adrenalized commentators have said that any effort to actually conduct this analysis is a fool’s errand. The standard is so vague and shapeless that it is functionally meaningless until a court sharpens the standard with defined tests and definitive holdings. Other commentators suggest that employers abandon any attempt to determine if any two types of work are substantially similar to one another (an analysis required by the statute) and instead focus on the second half of the statutory analysis, which allows employers to justify wage disparities (along race or gender lines) on the basis of a bona fide factors other than sex or race.

While it is true that courts have not yet ordained a specific analysis on how to determine substantially similar work, the statutory standard is not so vague as to defy either analysis or application.  Legislative examples propose that under this standard a male school janitor and a female hotel housekeeper may be engaged in substantial similar work.

Even if the standard were so vague as to defy application (and I don’t believe it is) employers are well served to act reasonably and based upon a good faith and reasonable interpretation of the law. Yes, a court may later hold that some part of any analysis used is incorrect, but the use of a reasonable analytic process (before any court decision considering the law) will likely place an employer in a better position than a company that has skipped the first step of the required analysis.

To read this full article and a general approach to conducting the “substantially similar” work analysis, click here.