California Labor Law Update: Changes in Sexual Harassment Protection

New employment laws or amendments to existing laws are passed by the California legislature every year. The changes can directly impact the relationship between an employer and their employees as well as how they run their business. 2014 saw dozens of new labor laws go into effect.  

One important change that occurred in 2014 was a result of an amendment to Government Code 12940. It clarifies the definition of sexual harassment in the workplace. After a 2013 appellate decision, there was a question as to whether or not there needed to be sexual desire on the part of the perpetrator in order to establish a legitimate sexual harassment claim. Bill 292 addressed this issue.

The California legislature passed Senate Bill 292 in 2013 and we saw it go into effect on January 1, 2014. This amendment to the previous employment law defining sexual harassment in the workplace in California redefines the issue: sexual harassment is prohibited under California law without regard to the sexual desire of the perpetrator. It was reasoned that sexual harassment (like other forms of harassment) isn’t necessarily motivated by desire. In fact, harassment of all types is more often motivated by hostility. The passing of this bill addressed the confusion in the California courts regarding whether or not a sexual harassment claim can be established without a basis of desire. Senate Bill 292 clarifies what the California courts have been recognizing for years: that sexual motive or desire isn’t necessary in order to establish a sexual harassment claim and bring action against an employer. 

If you or someone you know has questions about what constitutes a sexual harassment claim or if you feel you work in a hostile work environment get in touch with the employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Ninth Circuit Clarifies with Recent Ruling: Delivery Drivers are Employees Not Independent Contractors

Plaintiffs in Ruiz v. Affinity Logistics Corporation performed delivery services in California for the defendant under contracts binding the drivers as independent contractors and governed by Georgia law. The putative class action asserted that under California law drivers should have been paid sick leave as well as other employment benefits, but because they were wrongfully classified, they were denied the benefits. Originally, the district court applied Georgia law and found in favor of the defendant due to the classification of the drivers as independent contractors. The drivers appealed.

The first appeal in 2012 resulted in the Court of Appeals disregarding the contract’s provision stating the employer/employee relationship would be handled according to Georgia law. Instead they applied California law to the disputes as they found Georgia law to be too favorable to the employer. The case was then remanded for application of California law. The district court again entered judgment in favor of the employer, and again, the plaintiffs appealed.

On June 16, 2014, the Ninth Circuit gave a different ruling. The ruling stated that despite the contract terms, delivery drivers were employees under California law and were not independent contractors. (This finding was in spite of the fact that all the drivers had independent contractor agreements, formed their own corporate entities, paid for their own vehicles, and hired their own help as needed. The ruling found that the drivers were wrongfully classified under California Law as independent contractors due to the employer’s right to heavily control their work regardless of the titles of the parties involved or how the employee/employer relationship was described. Some of the specific instances cited as “heavy control of work” included: tight control over driver routes and schedules, 100% adherence requirements to the detailed procedure manual, vacation policies (and other similar policies) indicative of employment, use of the drivers’ leased trucks by other drivers without additional compensation, required daily meetings, uniforms, inspections, monitoring of routes (real time), etc.

The case reminds us that merely stating that a relationship is that of an independent contractor is not enough when the relationship itself exhibits signs of an actual employee/employer relationship. It is prudent for companies to remember that the courts will not hesitate to rule that independent contractors should have been classified as employees if the actual working relationship defies what is agreed on paper.

For more information on differentiating between an independent contractor and an employee contact your Southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

President Obama set to Sign Order Banning Anti-Gay Workplace Discrimination

White House news indicates that President Barack Obama is going to sign an order banning anti-gay discrimination in the workplace. The president has directed his staff to draft an executive order. The order would place a ban on workplace discrimination against lesbian, gay, bisexual and/or transgender employers of any federal contractors. Many see this move as the clearest indication that the Obama administration is prepared to take action on LGBT rights in spite of Congress’s failure to do so.

It’s unclear whether Obama intends the leak of the “intention” to sign as a warning to lawmakers to pass more extensive workplace discrimination laws in the limited window available to them before he takes matters into his own hands or if it is the long overdue action he pledged to take during his 2008 campaign.

The planned executive order comes after years of what many view as inaction. The Obama administration has been calling for Congress to pass the Employment Non-Discrimination Act (which would make it illegal for employers throughout the entire nation to fire or discriminate or harass anyone in their employ due to sexual orientation or gender identity). The bill passed the Senate, but stalled in the House. Due to this stall the president has felt an increase in pressure to take action on his own. 

If the proposed executive order were to take effect, it would affect approximately 16 million workers. The executive order under discussion would build upon protections already in place that prohibit general discrimination in the workplace on the basis of race, color, religion, sex, or nationality. Millions of Americans in most states in the country head to work every morning unsure of their job security because of who they are or who they love. There are currently no federal laws providing adequate protection for LGBT workers fearing employment discrimination. 

For additional information on legal protection from harassment and discrimination in the workplace for LGBT contact the experts in California employment law at Blumenthal, Nordrehaug & Bhowmik. 

Female Employees Sue Papa Murphy’s for Secret Filming in Workplace Bathrooms

Four women are suing the Martinez franchise owner of the popular Papa Murphy’s Take ‘N’ Bake Pizza. The suit is based on their allegations that their former boss secretly videotaped them in the employee restroom while using the toilet and undressing. The women claim they suspected their boss, Jason Lassor, of secretly taping them in the workplace’s unisex bathroom for three months before they eventually discovered a hidden camera inside of a cardboard box placed on a shelf in the bathroom.

Lassor already pleaded guilty to one felony count of child pornography and a misdemeanor unlawful electronic video recording charge. One month after pleading guilty, Lassor was sentenced to 120 days in county jail. His time was served by electronic home detention.

One of the four women (who will go unnamed as sex assault victims) was under 18. The women’s representation indicated that the situation was a significant breach of trust and that they were completely devastated when they learned of the filming device. They will continue dealing with the after effects of learning that their privacy had been so irrevocably breached by their employer for some time.

While the women had suspicions that they were being filmed for months prior to finding proof, they feared reprisal and workplace retaliation if they were to complain about their suspicions. When the video camera was discovered in January of 2013, the woman who discovered it called one of the other women who was at home at the time. She came to the place of business, picked up the camera and delivered it to the Martinez police. Lassor was arrested later that same day.

The suit filed by the women against the company and the franchise owner claims negligent supervision, training and retention as well as invasion of privacy, sexual discrimination, harassment and other workplace violations of employment law.

If you have questions regarding your rights to address uncomfortable work situations (suspected or otherwise) while avoiding employer retaliation in the work place contact the California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Pennsylvania Grocery Salesman Files Suit to Seek Overtime Pay

A Pennsylvania grocery distributor claims he is entitled to overtime pay from his employer. According to the federal suit he filed at the U.S. District Court for the Eastern District of Pennsylvania, Brian Place claims his regular salary didn’t compensate for the number of hours that he worked as Sure Winner Foods’ sales administrator. The Maine based distributor specializes mostly in frozen foods.

Brian Place alleges that the distributor violated the federal Fair Labor Standards Act (FLSA) as well as Pennsylvania’s Minimum Wage Act. Place complains that he worked for Sure Winner Foods from February 2014 through April 2014. During the three month time period, Place traveled to various stores in central and eastern Pennsylvania. His job duties required that he stock products on store shelves for Sure Winner Foods clients. Place alleges that he spent substantially more than a full 40 hour work week on his standard schedule, received a fixed salary and that he was classified as exempt from overtime pay.

According to Mr. Place, his exempt status was incorrect and other employees at the distribution company are in similar positions with no recognition or pay for overtime. He alleges that he and other individuals filling similar positions in the company were (and are) being cheated out of wages they deserve. The suit specifies overtime pay violations specifically between 2011 an 2014. Mr. Place is seeking individual relief and collective relief from Sure Winner, urging other employees to step forward.

According to the Department of Labor site, employers must pay at least time and a half wages to any and all employees who work one or more hours over the 40-hour workweek mark. To discuss any of the many exemptions to the rule, contact the California overtime pay experts at Blumenthal, Nordrehaug & Bhowmik. 

Failure to Pay Overtime Has Navy Federal Credit Union Making News

In recent news, a lawsuit was filed claiming that Navy Federal Credit Union failed to pay appropriate overtime wages. Accusations were made against the Vienna based federal credit union by some of the branch workers. The original suit was filed by Anthony Lee out of Clark County, Nevada on May 27^th in the U.S. District Court, but he plans to seek class action status so others can join in the suit. Mr. Lee has been a member services representative at Navy Federal Credit Union for almost six years. This position is categorized as non-exempt from overtime (according to the suit filed).  Lee claims that he and other workers in jobs with similar duties have been frequently required to work off the clock both before their shift starts and after it ends. The total of the “off the clock” work was approximately 30-45 minutes per day per employee. The lawsuit alleges that this practice of requiring off the clock work before and after shift work is in violation of the Fair Labor Standards Act (FLSA).

In addition to allegations that the Navy Federal Credit Union violated FLSA, Lee claims that one of his previous managers in the workplace referred to him by the “N” word on multiple occasions. In response, a statement was issued by Navy Federal: “The fair treatment and well-being of our employees is of the utmost importance to us…we take this claim seriously and are looking into it.”

The Navy Federal Credit Union is the largest credit union in the United States employing approximately 11,000 employees worldwide. It’s possible that up to 500 of their workers might be a part of the class action started by Lee in regards to FLSA violations, etc. The suit will be seeking a declaratory judgment that the allegations made were illegal as well as an injunction preventing further similar activities. Damages are unspecified, but will include waiting time penalties as well as court costs.

Class action lawsuits serve an important function in the workplace. They provide employees with the opportunity to come together and assert their rights under California Labor Laws and federal employment laws such as the Fair Labor Standards Act (FLSA). Contact Blumenthal, Nordrehaug & Bhowmik with questions on class action suits in California. 

$2.4 Million Settlement for Guest Thai Workers Awaiting Approval by U.S. District Court

The Equal Employment Opportunity Commission (EEOC) announced June 3, 2014 that EEOC and four Hawaii growers settled for $2.4 million in response to a suit alleging that Thai guest workers supplied by labor contractor Global Horizons, Inc. were discriminated against based on race and national origin. The proposed settlements are still waiting for approval by the U.S. District Court for District of Hawaii, but as they follow the court’s ruling earlier in the year that Global Horizons was in violation of Title VII of the 1964 Civil Rights Act through their engagement in what was described as a pattern of harassment and discrimination against the Thai workers, many expect quick approval.

In 2011, the EEOC sued Global Horizons, as well as multiple growers in Hawaii and a couple growers in Washington State. The high-profile human trafficking case alleged that Global Horizons misled poor Thai workers that were forced to pay high fees in order to enter the United States as guest workers. Once on US soil, the Thai guest workers were then subjected to substandard housing, passport confiscation, harassment on the job, passport confiscation, etc.

Four separate proposed consent decrees would benefit approximately 500 Thai workers (those who worked between 2003 and 2007). Under the proposed consent decrees, defendant Mac Farms would pay $1.6 million, Kauai Coffee would be $425,000, Captain Cook Coffee would pay $100,000 and Kelena Farms would pay $275,000. Payments would go to the alleged discrimination victims in amounts to be determined by the EEOC.

For more information regarding equal employment or discrimination in the workplace, contact Blumenthal, Nordrehaug & Bhowmik, your California discrimination and employment law experts.