Monthly Archives

September 2016

California Department of Industrial Relations and Labor Commissioner Create Complaint Hotline

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Employees who think their employer is not paying wages or following other California labor laws can now lodge complaints with the Department of Industrial Relations, which includes the state Labor Commissioner’s office. See the press release here.

This new system allows workers to fill out an online form (here) to report violations. The report does not constitute a claim for the employee’s own wages, which would have to be filed separately. However it is unclear what the agencies will do with the reported info.

The online system ensures that employees do not harass employers by filing bogus complaints, or makes reports about matters that have nothing to do with the Labor Commissioner.

If you should have any questions, please contact your HR Ideas representative at 925-556-4404.

Berkeley Enacts California’s Newest Local Paid Sick Leave Law

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On August 31, 2016, the City of Berkeley, California joined the long list of local jurisdictions to create a local sick leave law when it enacted the “Paid Sick Leave Ordinance.” Berkeley also amended its minimum wage law1 and codified a new law concerning hospitality service charges. The Ordinance appears to be an effort by the Berkeley City Council to control the paid sick leave debate because two competing ballot measures – one proposed by advocates and another by the city – will appear on the upcoming November ballot.2 Whether this move is a coup de grace or merely the first strike in a prolonged legal battle over which law controls remains to be seen. Until voters weigh in, the Ordinance will be the applicable law employers are required to comply with when it becomes operative on October 1, 2017.3


The Ordinance applies to all employers employing or exercising control over an employee’s wages, hours or working conditions, or that receive or hold a Berkeley business license. However, different standards apply to a “small business” with fewer than 25 persons working for compensation during a given week, including full-time, part-time, or temporary employees, and individuals made available to work through the services of a temporary services or staffing agency or similar entity. Additionally, the law covers any person who, in a calendar week, performs at least two hours of work within Berkeley’s geographic boundaries and qualifies as an employee entitled to payment of a minimum wage under state law or is a Welfare-to-Work Program participant. Similar to many other local sick leave laws, Berkeley’s Ordinance’s requirements may be waived in a bona fide collective bargaining agreement if the waiver is explicitly set forth in clear and unambiguous terms.

Accrual, Caps & Carryover

If an employer has a paid leave policy (e.g., paid time off policy, vacation, or other paid leave policy) that provides employees paid leave that may be used for the same purposes as the Berkeley law and meets the law’s accrual, cap, carry-over, cash-out, and use requirements, it is not required to provide additional paid sick leave.

Otherwise, the Ordinance requires that employees who have not accrued State-required paid sick leave before October 1, 2017, must begin to accrue City-required paid sick leave on October 1, 2017 or when employment begins, whichever is later. The Ordinance further provides that employees who have accrued State-required paid sick leave before October 1, 2017 continue to and use such leave in a manner consistent with state law.4 Covered employees accrue one paid sick leave hour for every 30 hours worked, which accrues in whole-hour units not fractionally (e.g., employees working 40 hours in a week will accrue one hour, not one-and-one-third hours as required under state law). For small businesses, there is a cap of 48 hours per year; for all other businesses the cap is 72 hours, though employers can set a higher cap or no cap. Accrued but unused leave carries over from year to year – whether calendar or fiscal year – but cannot exceed the cap.

Use, Notice, Verification, Documentation & Payment

Covered employees can use accrued leave 90 calendar days after employment begins for the following purposes5: physical or mental illness, injury, or a medical condition; obtaining professional diagnosis or treatment for a medical condition; other medical reasons, such as pregnancy or obtaining a physical examination. Leave can be used for the employee’s own need, or to care for a family member (child, parent, legal guardian, ward, sibling, grandparent, grandchild, spouse, registered domestic partner) or a designated person if the employee does not have a spouse or registered domestic partner and designates a person for whom leave may be used. Notably, leave cannot be used for reasons related to domestic violence, sexual, or stalking, as permitted by state law; however, as employers must comply with all applicable laws, employees will be able to use state-accrued leave for such purposes. Small businesses can limit leave use to 48 hours per calendar year, but other employers cannot limit leave use. Accordingly, for “large” businesses it appears Berkeley will mimic its Bay Area neighbors Emeryville, Oakland, and San Francisco and use a rolling cap system instead of a hard cap system.

If the need for leave is foreseeable, employees must provide reasonable advance notice. However, if unforeseeable, employees must provide notice as soon as practicable. Employers cannot condition leave use on employees searching for or finding a replacement worker to cover their leave hours. Interestingly, Berkeley breaks with the position taken by state enforcement officials and expressly allows employers to take reasonable measures to verify or document that leave was used for a permitted purpose. Employers, however, cannot require employees to incur documentation or verification expenses exceeding $15.

Sick leave is paid at an employee’s hourly wage. If an employee in the 90 days of employment before taking accrued sick leave had different hourly rates, was paid by commission or piece rate, or was a non-exempt salaried employee, an employer is required to calculate the sick leave pay by dividing the employee’s total wages – excluding overtime premium pay – by total hours worked in the full pay periods of the prior 90 days of employment. Employers must pay employees for sick leave taken no later than the payday for the next regular payroll period after leave was taken. Wage statements or required writings that must be provided when wages are paid must include the number of accrued paid sick leave hours.6 Employers are not required to payout accrued but unused paid sick leave when employees are terminated, resign, retire, or otherwise separate from employment.

Notice, Posting & Recordkeeping

Employers must conspicuously post at any workplace or job site in Berkeley where any employee works the city-created notice informing employees of their paid sick leave rights. The notice must be posted in any language spoken by at least five percent of employees at the workplace or job site. If an employee does not have a regular physical location where they perform work, employers must provide a copy of the notice to the employee when they are hired or assigned to complete work in Berkeley, which must be provided before the employee commences work in Berkeley and in the language the employee most easily comprehends.

Employers must keep employee payroll records for a period of 4 years that identify hours worked, wages paid, and paid sick leave accrued. However, unlike state law, the Berkeley Ordinance does not require records to identify paid sick leave used. If an employer does not maintain or retain adequate records documenting accrued paid sick leave or does not allow the City reasonable access to records, an employee’s account of how much he or she was paid is presumed accurate absent clear and convincing evidence otherwise.

Prohibitions,7 Penalties & Enforcement

Employers cannot interfere with, restrain, or deny the attempted or actual exercise of a protected right, including but not limited to, using accrued leave taken as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an employee to discipline for using accrued leave. An employer or any other party cannot discriminate in any manner or take any adverse action – including action relating to any term, condition or privilege of employment – against any person in retaliation for exercising protected rights, which include but are not limited to the right to: accrue and use paid sick leave; file a complaint or inform any person about any party’s alleged noncompliance with the law; inform any person of his or her potential rights under the law, otherwise educate any person about the law, or assist him or her in asserting such rights. Protections apply to any person who mistakenly, but in good faith, alleges noncompliance with the law. Taking adverse action against a person within 90 days of the individual exercising protected rights raises a rebuttable presumption the act was done in retaliation for exercising those rights. Additionally, outside the union context, any request that an individual employee waive his/her rights is unlawful.

$500 fines can be imposed for failing to post the notice, failing to maintain payroll records or allow the City access to them, or failing to provide a wage statement with accrued leave hours. A $1,000 fine can be imposed for each employee against whom retaliatory action was taken. Additionally, a fine equal to the total amount of remedies can be imposed, and repeat offenders can face an additional $50 civil penalty for each individual whose rights were violated for each day or portion thereof a violation occurred or continued.

Although the Ordinance does not currently address administrative complaints – it is implied – it does provide a private right of action. Any aggrieved person, any entity whose member is aggrieved by a violation, or any other person or entity acting on behalf of the employee and all other employees affected by the employer’s violations or on the public’s behalf (per state law) can file a civil action against an employer or other person violating the law and, if successful, must be awarded reasonable attorneys’ fees and costs, as well as appropriate legal or equitable relief, including, without limitation: back wages unlawfully withheld; $50 civil penalty to each employee or person whose rights were violated for each day the violation occurred or continued; reinstatement in employment; and injunctive relief. Additionally, available remedies include issuing leave unlawfully withheld.8

The City can also file a civil action against an employer. Additionally, the Ordinance allows the City to require an employer to publicly post notice of its failure to comply if the City determines a violation occurs. City agencies or departments can also revoke or suspend any registration certificates, permits or licenses held or requested by an employer until a violation is remedied, and the city cannot renew a license of an employer with outstanding violations until the violation is remedied.

10 Things You Need To Know About EEOC’s New Retaliation Guidance

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On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) released its Enforcement Guidance on Retaliation and Related Issues. The document is a helpful tool for employers when navigating the often-treacherous retaliation road, and will be used by agency investigators, plaintiffs’ attorneys, and courts as a guidepost when examining employer actions. Here are 10 things you need to know about the guidance in order to stay up to speed.

1. The Guidance Is Not Gospel.

First things first: this guidance is not controlling law. It is not on par with statutes, regulations, and court decisions. However, that does not mean that you should ignore the document. Not only does it compile a treasure trove of controlling authority in the form of case citations and references to law, but courts will often look to agency guidance when called upon to examine a thorny issue.

2. The Guidance Was Necessary.

This guidance replaces the agency’s discussion on retaliation contained in its 1998 Compliance Manual, the last such document on the topic. A lot has changed in the intervening 18 years, necessitating the updated and revised document. Most notably, the number of retaliation claims filed against employers each year has skyrocketed.

In 2015, for example, nearly 40,000 EEOC retaliation charges were filed against employers, an all-time high and a 119% increase since 1998. Moreover, retaliation charges have been the most frequently alleged claims filed with the agency since 2009, accounting for over 44% of all charges in 2015.

3. The Guidance Covers A Broad Array Of Claims.

The guidance covers all of the types of retaliation claims governed by the EEOC, which includes Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), the Equal Protection Act (EPA), Title II of the Genetic Nondiscrimination Act (GINA), and Section 501 of the Rehabilitation Act.

4. The Guidance Discusses What Activity Is “Protected.”

Not every employee action can form the basis of a retaliation charge; only a certain kind of “opposition” will serve as a valid basis. The EEOC guidance states that opposition will only satisfy this standard if it is reasonable, and that the employee must base the opposition on a good faith belief that the employer conduct is, or could become, unlawful.

The original draft of the guidance, proposed by the EEOC in January 2016, took several positions that seemed contrary to current controlling authority on the subject. Therefore, Fisher Phillips submitted comments to the agency in February 2016 with the aim of ensuring a balanced approach. The final version of the guidance includes several revisions suggested by the firm that will aid employers when it comes to defining “opposition.”

For example, the initial version minimized the impact of a helpful 2001 Supreme Court case on retaliation, Clark County School District v. Breeden. The firm comments requested that the agency elevate the discussion of Breeden from a mere footnote so that it could “play a more central role in the opposition section.” The comments also suggested that the agency adopt a more deferential attitude towards the case, given that it stands as controlling law over all federal courts and agencies, including the removal of language marginalizing the case as having “unusual facts.”

The final guidance does just that, removing such dismissive language, elevating the Breeden discussion to its own section, and affording employers with ample authority to defend claims on the opposition standard.

5. The Guidance’s Discussion On “Adverse” Conduct Takes An Expansive Approach.

The guidance follows the Supreme Court’s 2006 pronouncement in Burlington Northern v. White which decided that a “materially adverse action” subject to challenge under anti-retaliation provisions encompass a broader range of actions than an “adverse action” subject to challenge under typical statutory non-discrimination provisions. Therefore, the agency provides a laundry list of employer activities that could form the basis of an “adverse” action under retaliation theory.

While most employers understand that demotions, suspensions, and terminations can justify a retaliation claim, the guidance also points out that actions such as threats, warnings, low evaluations, and transfers could be enough to dissuade an employee from engaging in protected activity, thus satisfying the second prong of a retaliation claim.

6. The Guidance Discusses The Key “Causation” Element.

Fisher Phillips’s comments on the agency’s proposed “causation” standard were the most extensive because the firm believed they were most in need of revision. Critically, the initial EEOC proposal was dismissive of another helpful Supreme Court case, University of Texas Southwest Medical Center v. Nassar (2013). That case was particular critical of the agency’s 1998 Compliance Manual position on retaliation, expressly rejecting the guidance as lacking in persuasive force and failing to address the specific statutory language. It called the agency’s conclusions, in fact, “into serious question.”

Nassar established important principals in this field, focused mainly on the standard a worker would need to establish in order to advance a viable claim of retaliation. The initial agency proposal offered but a brief mention of Nassar and this standard, and included a discussion of the EEOC’s preferred lower standard that had been rejected by the Supreme Court. The finalized guidance corrects this misstep, creating an entire section to discuss the proper “but-for” causation standard that should apply in cases against private employers.

The firm’s comments also pointed out to the agency that its original proposal included a detailed discussion of the many ways in which a causal link could be found between an employee’s activities and an employer’s adverse action, but not much on how employers could demonstrate the opposite: that no actionable retaliation took place.

The agency responded to this suggestion by creating an entire new section entitled “Examples of Facts That May Defeat a Claim of Retaliation,” which employers should find helpful when responding to charges of retaliation. It includes examples such as poor performance, inadequate qualifications, negative job references, misconduct, reductions in force or downsizing, and others.

7. The Guidance Includes A “Promising Practices” List.

The guidance offers employers a list of five suggestions that it believes will reduce the risk of violations. It revised the list from being called “best practices” in the proposed version to “promising practices” in the final guidance because, according to the EEOC, “there is not a single best approach for every workplace or circumstance.”

The guidance recommends (a) implementing a written anti-retaliation policy; (b) training all supervisors on the anti-retaliation policy; (c) providing advice and individualized support for those who could be in a position to retaliate and those who could be in the firing line for retaliatory action; (d) proactively following up after protected activity or opposition has taken place; and (e) reviewing your internal employment actions to ensure full compliance with the EEO laws on retaliation.

While most of these actions are fairly intuitive and are part of most employers’ thorough and mature human resources compliance efforts, we recommend specifically citing to these “promising practices” when defending against charges of discrimination.

8. The Guidance Tackles ADA Interference Claims.

The guidance points out that, unlike other statutory claims, the ADA also contains a non-interference provision which prohibits actions getting in the way of employees exercising or enjoying their ADA rights. It goes beyond simple retaliation protection, offering coverage for anyone who is subject to coercion, threats, intimidation, or other interference with respect to ADA rights. The guidance delves into this topic by providing five hypothetical scenarios demonstrating statutory violations and a bullet point list of prohibited tactics.

9. The Guidance Reminds You To Not Take It Personally.

The guidance concludes with the agency pointing employers towards an article written by an EEOC manager regarding how supervisors should respond if accused of discrimination or harassment. In the article entitled, “Retaliation – Making It Personal,” the EEOC acknowledges that it may be difficult for managers not to take EEO allegations personally, but cautions them not to take actions that could be perceived as retaliatory.

Some suggestions include avoiding public discussion of the allegation, keeping sure not to isolate the complaining employees, avoiding reactive behavior, not interfering with the EEOC process, and avoiding making threats to the employee in question.

10. The Guidance Is Complemented By Other Resources.

Aside from the guidance, the agency also issued two short user-friendly resource documents: a question-and-answer publication summarizing the guidance document, and a short Small Business Fact Sheet condensing the major points in the guidance in non-legal language. Combined they form a helpful collection of material with which you will want to familiarize yourself. Whether developing policies, conducting training, responding to charges of discrimination, or otherwise defending your organization’s actions, these materials should be the part of every human resource professional’s toolkit.

If you have any questions or need further assistance, please contact your HR Ideas representative at 925-556-4404.