On May 10, 2016 Governor Brown signed Senate Bill 269 (SB 269) which amends certain California statutes dealing with disability access in public accommodations and business establishments.Beth-West-15_web SB 269 is not a new law, but rather, an effort by the Legislature and Governor Brown to amend existing law in order to address the significant financial hardship that “drive-by” and “technical non-compliance” lawsuits are having on small businesses in California.  Both federal and state court dockets in California are inundated with lawsuits filed against small businesses by professional plaintiffs and their attorneys who have created a cottage industry by filing lawsuits for technical violations of federal and state disabled access standards.

To read this full article, please click here.

On May 9, 2016 the EEOC issued yet another “guide” – this time to outline its position on when and how leave must be granted for reasons related to an employee’s disability under the AmericansBeth-West-15_web
with Disabilities Act (“ADA”).  The publication, entitled “Employer-Provided Leave and the Americans with Disabilities Act,” contains information on the EEOC’s position in connection with six subject areas relating to leaves as a form of reasonable accommodation under the ADA, and contains various examples to illustrate those positions.   For a summary of the EEOC’s position on each of the six subject areas, please click here.

On May 2, 2016, the Ninth Circuit issued its decision in Corbin v. Time Warner Entertainment – Advance/Newhouse Partnership and affirmed the district court’s summary judgment in favor of employer, Time Warner Entertainment-Advance/Newhouse Partnership (“TWEAN”) in a putative class action brought by a TWEAN employee seeking lost compensation based on TWEAN’s timekeeping policy. Beth-West-15_web

Summary of the Claim.

The case turned on $15.02 and one minute. Seriously – it did!  The amount of $15.02 represented the total amount of compensation that plaintiff, Andre Corbin (“Corbin” or “Plaintiff”) alleged he has lost due to TWEAN’s compensation policy that rounds all employee time stamps to the nearest quarter-hour. The one minute claim represented the total amount of time for which Corbin alleges he was not compensated as he once mistakenly opened an auxiliary computer program before clocking into TWEAN’s timekeeping software platform. Corbin argued that $15.02 in lost wages and one minute of  uncompensated time entitled him to relief under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq., and various California state employment laws.  The trial court and the 9th Circuit Court of Appeal disagreed.

To read the full article, please click here.

To sit or not to sit, that is the question.  And now the California Supreme Court has given us an answer.  Well, sort of.  They have told us how to find the answer.  Even that’s a stretch.  Pull up a seat and I will explain.

To help it resolve two class actions involving California Wage Order requirements that employers provide employees with suitable seats, the Ninth Circuit recently certified some questions for the California Supreme Court.  The Supreme Court responded in Kilby v. CVS Pharmacy, Inc.  As stated verbatim in the Supreme Court’s responsive opinion, these were the questions posed by the Ninth Circuit:Lucas Clary 02_web

  1. Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?
  2. When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?
  3. If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?”

If you just want the short answers, the opinion was kind enough to give us those right up front as well.  Again, verbatim:

  1. The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.
  2. Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.
  3. The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

So, there you go.  If you just wanted the answers, you can stop reading now.  But if you want a little elaboration and more background on how the Court arrived at those answers, and my thoughts on what employers should take away from the opinion, remain seated and continue ahead.
Continue Reading Pull up a Chair: California Supreme Court Weighs in on Suitable Seating

Summary of Program

The regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors require that certain employers provide training to their supervisors every two years.L&E2015

The Labor and Employment Group at Weintraub Tobin Chediak Coleman Grodin is offering a two hour in-person training session that will comply with all the requirements outlined in the regulations including things like:

  • An overview of sexual harassment laws
  • Examples of conduct that constitute sexual harassment
  • Lawful supervisory responses to complaints of harassment in the workplace
  • Strategies to prevent harassment in the workplace
  • Training on the prevention of “abusive conduct” in the workplace (AB 2054)
  • Practical and inter-active hypotheticals and examples to help illustrate what bullying, sexual harassment, discrimination, and retaliation can look like.
  • A discussion of the DFEH’s new updated regulations, including what must be contained in an employer’s policy against harassment, discrimination and retaliation.

If you are an employer with 50 or more employees, and have supervisors who have not yet been trained, this training is a must. We look forward to hearing from you and helping you comply with your continuing sexual harassment training obligations.

Training Program

Date:  May 19, 2016

Time:  9:30 a.m. – 11:30 a.m.

Charge:  $75 per supervisor.

To register for this training, please email Ramona Carrillo at rcarrillo@weintraub.com.