On July 21, 2014, President Obama approved and signed an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity — in other words, specifically protecting individuals from LGBT discrimination. “We’re on the right side of history,” Obama said at a press conference. “America’s federal contractors should not subsidize discrimination against the American people.”
Executive Orders - LGBT discrimination
Two executive orders already protected federal employees on the basis of sexual orientation. Executive Order 11246, Equal Employment Opportunity (1965), signed by President Lyndon B Johnson, barred discrimination by federal contractors on the grounds of race and sex. The second, Executive Order 11478, Equal Employment Opportunity in the Federal Government (1969), signed by Richard Nixon, barred discrimination by the government itself. The amendments put into action by President Obama bar discrimination against transgender federal employees, and add people who identify as LGBT to a list of those against whom federal contractors cannot discriminate. The Order went into effect immediately after signing.
Background on a case concerning employee reimbursement
Colin Cochran (plaintiff) filed a putative class action against Schwan’s Home Service, Inc. (Home Service) on behalf of customer service managers who were not reimbursed for expenses pertaining to the work-related use of their personal cell phones. He alleged causes of action for violation of section 2802; unfair business practices under Business and Professions Code section 17200 et seq.; declaratory relief; and statutory penalties under section 2699, the Private Attorneys-General Act of 2004. He moved to certify the class. Home Service filed an opposition as well as a motion to deny certification. On October 24, 2012, the trial court held a hearing.
The trial court denied class certification on the grounds that “many people now have unlimited data plans for which they do not actually incur an additional expense when they use their cell phone,” and therefore concluded that individual questions of liability would predominate, rendering class certification improper. The trial court stated: “[Cochran] has not demonstrated how the cell phone plans and method of payment exhibited by a portion of the class will accurately reflect the plans and method of payment for the entire class.
California Labor Code Section 2802
Pursuant to section 2802, subdivision (a), “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer[.]” The purpose of this statute is “‘to prevent employers from passing their operating expenses on to their employees.’” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 562 (Gattuso) [quoting legislative history from the 2000 amendment to the statute].) “In calculating the reimbursement amount due under section 2802, the employer may consider not only the actual expenses that the employee incurred, but also whether each of those expenses was ‘necessary,’ which in turn depends on the reasonableness of the employee’s choices. [Citation.]” (Gattuso, supra, 42 Cal.4th at p. 568.)
As detailed in our post earlier this year, Fair Chance Ordinance (FCO) to Help Prevent Discrimination, San Francisco’s posting, reporting and inquiry rules for applicants’ and employees’ criminal histories takes effect on August 13, 2014.
San Francisco Mayor Edwin M. Lee signed San Francisco’s Fair Chance Ordinance on February, 14, 2014 with the intent of preventing discrimination based on criminal history. Many employers ask job applicants to check a “box” on a job application to disclose criminal history information. As of August 13th, the ordinance applies to private and
public employers and it “bans the box” on employment applications and restricts private employers’ ability to use criminal history information. In an effort to prevent discrimination, the new ordinance bars most employers and housing providers from (1) asking applicants to disclose their criminal background in the application process, and (2) using criminal background history or records in the employment or housing selection process. In addition, the FCO imposes new posting, notice, disclosure and recordkeeping requirements that take effect on August 13, 2014.
Last week, President Obama
signed the Fair Pay and Safe Workplaces Executive Order that requires contractors to (1) disclose recent violations of various workplace laws before being awarded federal contracts; (2) provide wage notifications to employees and notify independent contractors of their non-employee status; and (3) barring contractors from requiring employees to sign pre-dispute arbitration agreements. The Executive Order will be implemented on all covered contracts in stages on a “prioritized basis” starting in 2016.
A June 26th California Supreme Court decision holds that an undocumented worker who was wrongfully terminated in violation of the California Fair Employment and Housing Act (FEHA) may be awarded lost pay damages, even if the employee was ineligible for employment to begin with under federal law.
The plaintiff, Vicente Salas, was a seasonal production line employee with Sierra Chemical, a company that manufactures, packages, and distributes chemicals for treating water, including water in swimming pools. He injured his back while stacking crates on the production line and claimed he needed to change his work routine while he was recovering. Salas filed a workers’ compensation claim for his injury, but his employer told him that he could only return to work after he obtained a doctor’s release.
New EEOC Guidance Clarifies Protections for Pregnant Employees and Fathers
- Pregnancy Discrimination
The updated enforcement guidance begins by restating statutory requirements under the Pregnancy Discrimination Act (PDA)–that an employer cannot discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that female employees affected by pregnancy, childbirth or related medical conditions must be treated the same as other employees who are similarly situated in their ability or inability to work. Following an overview of the PDA, the U.S. Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Pregnancy Discrimination and Related Issues is divided into four parts:
A recent case that restricts how employers pay commissioned workers could trigger more wage-and-hour class actions. Coverage of the case is discussed on Law360, Time Waner Ruling Limits Employee Compensation. The following is an excerpt and a link to the full article:
Law360, San Diego (July 14, 2014, 11:02 PM ET) — Rejecting Time Warner Cable Inc.’s defense in a proposed overtime class action, the California Supreme Court held Monday that employers can’t satisfy the state’s compensation requirements by carrying over commission wages from one pay period to other pay periods, a ruling that restricts how employers pay commissioned workers and could trigger more wage-and-hour class actions, lawyers say.
Time Warner argued that a former account executive’s commissions, which were always paid on the final biweekly payday of each month, could be attributed to the weeks of the preceding month to meet the commissioned employee exemption’s minimum wage prong, but the California Supreme Court disagreed that the employer could treat commissions in this way.