Are you telling new hires and those currently employed all that you are required to tell them?  Below is a link to the Department of Labor Standards Enforcement Notice to Employee form which employers may use to fulfill their obligations under Wage Theft Protection Act that passed several years ago.  To view the form visit:  https://www.dir.ca.gov/dlse/LC_2810.5_Notice.pdfChuck-Post-07_web

That section requires that the employer notify the employees in writing of any changes to the information set forth in the written notice within seven calendar days after the time of the change unless one of the following applies:  (a) all changes are reflected in a timely wage statement furnished in accordance with Labor Code section 226; or (b) notice of all changes is provided in another writing required by law within seven days of the changes.

Beth-West-15_webThe United State Supreme Court issued its much anticipated decision in the case of Young v. UPS on March 24, 2015.  As of now, Young’s pregnancy discrimination claim remains alive and well.

Below is a summary of the court’s ruling:

Factual and Procedural Background.

Young was a part-time driver for UPS. When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, re­quired drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young subsequently filed a lawsuit under the federal Pregnancy Discrimination Act (the “Act”), claiming that UPS act­ed unlawfully in refusing to accommodate her pregnancy-related lift­ing restriction. She brought only a disparate-treatment (intentional) claim of dis­crimination, which a plaintiff can prove either by direct evidence that a workplace policy, practice, or decision relies expressly on a protect­ed characteristic, or by using the burden-shifting framework set forth in the case of McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas framework, the plaintiff has “the initial burden” of “establishing a prima facie case” of discrimination.  If she carries her burden, the employer must have an opportunity “to articulate some legitimate, non-discriminatory reason[s] for” the difference in treatment.  If the employer articulates such reasons, the burden shifts back to the plaintiff who has “an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination.” (cites omitted)

UPS filed a summary judgment motion in the District Court. In reply, Young presented several favorable facts that she believed she could prove. In particular, she pointed to UPS policies that accommodated work­ers who had lifting restrictions similar to hers because they were either injured on the job or had disabilities covered by the Amer­icans with Disabilities Act   (ADA).  UPS policies also accommodated employees who couldn’t drive at all because they had lost Department of Transportation (DOT) certifications. Young argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other relevant persons.” Continue Reading U.S. Supreme Court Issues Decision in Young v. UPS

LaborEmpSeminarLogoSummary of Program

Unfortunately, both single-plaintiff and class-action wage and hour lawsuits continue to plague California employers. Often employers are sued because of technical violations that occur simply because the employer is unaware of its legal obligations. Come join the Labor and Employment Group at Weintraub Tobin as they discuss the nuts and bolts of wage and hour compliance for non-exempt employees – there’s more to it than merely paying overtime and providing breaks.

Program Highlights

  • “Actual hours worked” and problems with “off the clock” work.
  • Is your overtime rate correct?
  • Are you “providing” a meal period to your employees?
  • “Flex-time,” “make-up time,” and “alternative work” schedules.
  • What are the courts saying – highlights of recent decisions regarding non-exempt wage and hour issues in California.

Date:   April 16, 2015

Time:   9:30 a.m. – 11:30 a.m.

Location:  400 Capitol Mall, 11th Floor, Sacramento, CA

To register for this seminar, please RSVP to Ramona Carrillo at rcarrillo@weintraub.com.

S. Plamondon_webOn February 25, 2015, the United States Department of Labor issued new rules designed to revise the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (“FMLA”).  The new rules amend the regulatory definition of spouse under the FMLA so that it now specifically includes employees in legal same-sex marriages so that such employees will be permitted to take FMLA leave to care for their spouse or family member, regardless of their state of residence. This change will ensure that the FMLA will provide employees in same-sex marriages the same ability as all other employees to fully exercise their FMLA rights.  The new rule will become effective on March 27, 2015. Continue Reading Same-Sex Marriage Partners Now Covered by FMLA

Brenden Begley_retouchIt is no secret that arbitration agreements may greatly reduce the risks that many employers face in disputes with employees.  For example, when used correctly, such agreements can curb exposure to class actions by forcing employees to arbitrate disputes on an individual basis instead of a class basis.  See, e.g., Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014).

However, when such an agreement either contains certain language or fails to include other language, it may result in a class action or a representative action being litigated in front of an arbitrator instead of a court.  This can be problematic for many reasons, not the least of which is that an arbitrator’s hourly charges typically are paid by the employer – and those fees can add up quickly in a complicated matter involving numerous parties.

Thus, instead of decreasing the cost of defending a class action or a representative action, a poorly drafted arbitration agreement could result in greatly escalating such costs.   A pair of recent decisions from the California Court of Appeal for the Fourth Appellate District (in San Diego) underscore the need for employers to use great care in drafting such agreements to avoid such outcomes. Continue Reading Arbitration Agreements Can Backfire on Employers