ICE worksite investigations

ICE to Increase Worksite Investigations This Summer

Form I-9 Audits Have Already Increased Significantly
U.S. Immigration and Customs Enforcement (ICE) has already commenced twice as many worksite investigations in 2018 than it completed in all of 2017, according to a recent ICE news release. Since October 2017, Homeland Security Investigations (HSI) has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. That’s up from 1,716 investigations, 1,360 I-9 audits, 139 criminal arrests and 172 administrative arrests the previous fiscal year.

ICE Planning Surge of Audits This Summer
The heightened worksite enforcement efforts will increase over the summer, according to Derek Benner, ICE’s acting executive associate director for HSI. “Our worksite enforcement strategy continues to focus on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law,” says Benner, adding that “HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices.”

Guidance for California Employers
Worksite audits are designed to ensure that all U.S. employers verify the identity and work authorization of each employee with the Form I-9, and only employ those with proper work authorization. In addition to being aware of the increased enforcement activity, employers need to understand the serious consequences of violations of Form I-9 rules and other immigration laws.

ICE worksite investigations

Failure to comply can lead to criminal and civil penalties, judicial forfeitures, restitution, and debarment. In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines. Last year, one company faced financial penalties that represented the largest payment ever levied in an immigration case. Criminal arrests of employers and administrative arrests of unauthorized workers can result as well. Employers should plan for the possibility of receiving a Notice of Inspection (NOI) of their Forms I-9, or even a workplace “raid.”

Fortunately, there are steps employers can take to prepare for a government visit or inspection of their immigration law compliance, and to limit their potential liability. One such move is to participate in the ICE Mutual Agreement between Government and Employers program, in which ICE certifies organizations for complying with the law. As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system. Keep in mind, however, E-Verify doesn’t enforce compliance for people paid as independent contractors, outsourced workers or those paid off the books.

California Employment Lawyers
An experienced California employment lawyer can quickly answer your questions about the Immigrant Worker Protection Act, Form I-9, and ICE worksite investigations. To discuss these developments, or any of California’s labor laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

parental leave

EEOC, Estee Lauder Reach Deal Parental Leave Lawsuit

Estée Lauder and EEOC Agree to Settle Sex Discrimination / Parental Leave Case

Summary
California employers must understand the multitude of laws affecting time off for the birth of and bonding with children. At the federal level, it all started with the Family and Medical Leave Act, or FMLA which provides for 12 weeks of unpaid leave for the birth or adoption of a child. The FMLA also allows time off for an employee’s own serious health condition, including any pre- and post-birth health issues that the mother may have. That fact alone suggested to some employers that mothers need more time to deal with the birth of a child than fathers. This is true with regard to paid pregnancy-disability leave but not the fact with paid child-bonding leave.

Estée Lauder Companies, Inc. is one of the world’s leading manufacturers and marketers of skin care, makeup, fragrance and hair care products. The Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit that the company violated federal law when it implemented and administered a paid parental leave program that automatically provides male employees who are new fathers lesser parental leave benefits than are provided to female employees who are new mothers. Estée Lauder and the EEOC agreed to settle the case earlier this year, however the terms of the settlement were not disclosed.

Bottom Line: Employers should ensure that their policies distinguish between disability leave following childbirth, which applies only to biological mothers, and bonding leave, which the EEOC has stated cannot distinguish between mothers and fathers under Title VII.

Background

The EEOC case against Estée Lauder arose when a male employee working as a stock person in an Estée Lauder store in Maryland sought parental leave benefits after his child was born. He requested, and was denied, the six weeks of child-bonding leave that biological mothers automatically receive, and was allowed only two weeks of leave to bond with his newborn child. Such conduct violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on sex.

According to the suit, in 2013 Estée Lauder adopted a new parental leave program to provide employees with paid leave for purposes of bonding with a new child, as well as flexible return-to-work benefits when the child bonding leave expired. Under its parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, Estée Lauder also provides eligible new mothers an additional six weeks of paid parental leave for child bonding. Estée Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding. The suit also alleged that new mothers are provided with flexible return-to-work benefits upon expiration of child bonding leave that are not similarly provided to new fathers. The EEOC sought back pay and compensatory and punitive damages on behalf of the aggrieved class members, as well as injunctive relief.

Discussion parental leave
It has becoming increasingly common for employers to offer paid leave to new parents even though the Family Medical Leave Act (FMLA) does not require an employer to pay an employee who is taking this leave. In fact, according to the Society for Human Resource Management’s (SHRM’s) 2017 Employee Benefits survey, on average, organizations that offer paid leave for a new child provide 41 days for new mothers and 22 days for new fathers. Notwithstanding the fact that Estee Lauder was not required to offer any paid child bonding leave to males or females, the EEOC took the position that by not offering the same benefit to men and women, Estes Lauder was discriminating against men.

California, New Jersey, Rhode Island, Washington and New York City currently have paid-leave statutes that cover parental leave and other family-related leave. Further, many states have laws on pregnancy-disability leave, accommodation and parental leave. Some cities and counties do as well and these laws can require either paid or unpaid time off. If an employer has employees in multiple locations, it should make sure that its parental-leave policy complies with all local laws.

Conclusion

Numerous employers still make a distinction in their parental-leave policies between primary and secondary caregivers. The EEOC lawsuit and the resulting settlement should not deter companies from implementing paid-child-bonding-leave policies, however employers should ensure that these benefits apply equally to all new parents.

The preceding case highlights the number of parental leave and paid time-off laws California employers must fully understand. Should you have questions about FMLA, parental leave, or sex-based discrimination don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

Ninth Circuit Rules on Equal Pay Act Case

Bottom Line
While the Equal Pay Act (EPA) permits “a differential based on any other factor other than sex,” the Ninth Circuit Court of Appeals issued an important decision on April 9, 2018 in Rizo v. Yovino, holding that an employee’s prior compensation is not a “factor other than sex.” Specifically, the Court held that the above exception under the EPA is intended to allow employers to rely upon only job-related factors, such as experience, educational background, ability, or prior job performance. Prior compensation, the Court opined, is not job-related.

Background
Aileen Rizo was hired as a school teacher in Fresno County in 2009. Rizo’s new salary was set according to the County’s Standard Operating Procedure No. 1440 (SOP 1440), which implemented a 10-level salary scale. SOP 1440 determined a new hire’s salary by taking the individual’s prior salary, adding 5%, and placing the new employee in the corresponding step of the salary schedule. Based on her previous position where Rizo earned a salary of just over $50,000 per year, SOP 1440 placed Rizo in the lowest salary tier, earning $62,133 per year.

While one the job, Rizo discovered that she was being paid less than other male teachers performing the same job. She sued for unequal pay under the Equal Pay Act (29 U.S.C. § 206(d)), and sex discrimination under Title VII and California’s Fair Employment and Housing Act (FEHA).

The Equal Pay Act  
The EPA provides that no employer shall discriminate between employees on the basis of sex “by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . .”

Unlike Title VII, the EPA does not require a plaintiff to show that the employer intended to discriminate. Instead, the plaintiff need only show that she is doing the same job as a male employee (and only needs to have one comparator) but is paid less. If the plaintiff can establish those facts the employer must prove one of four affirmative defenses. In this case, the relevant affirmative defense was that the pay differential was “based on any factor other than sex.”

Fresno County Motion in District Court
Fresno County conceded that it paid Rizo less than her male counterparts. However, it moved for summary judgment noting that SOP 1440’s reliance on an employee’s prior salary was a “factor other than sex” under the EPA. The district court denied Fresno County’s motion but certified it for immediate appeal.

A three judge panel vacated the district court’s decision. The panel held that a prior Ninth Circuit decision, Kouba v. Allstate Insurance Co., had settled the issue back in 1982. Under Kouba, an employer could rely on prior salary as a “factor other than sex.” Ms. Rizo did not take that decision lying down and asked for the entire Ninth Circuit to weigh in.

Ninth Circuit
Ninth Circuit Court of Appeals overruled prior Circuit law to hold that an employee’s previous compensation, either alone or in combination with other factors, cannot form the basis of a wage differential between men and women. In an en banc decision, the Ninth Circuit did so, indicating its intent to “clarify the law, including the vitality and effect of Kouba.” “Prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.”

The Court reserved the question of “whether or under what circumstances, past salary may play a role in the course of an individualized salary negotiation.” It remains an open question, therefore, whether an employer would violate the Equal Pay Act by offering an increased salary to an applicant who had rejected a lower offer because of his or her salary history.

Moving Forward
Employers should exercise extreme caution when using prior salary history to make hiring decisions. In California, recently-enacted Labor Code 432.3 stipulates restrictions on the use of such information, as do laws in several other states. If you have questions about the Equal Pay Act or would like to discuss a situation you are experiencing at work, please call us toll-free at 888-500-8469.  Our attorneys are here to help you understand your rights.

Additional Resources:

The Equal Pay Act of 1963

Equal Compensation

California Wage and Hour Laws

Employee Protections Breastfeeding Discrimination

Breastfeeding Discrimination

Laws that protect employees from breastfeeding discrimination are grounded in both federal and state laws. We recap below the various federal and state laws guiding employee protections, as well as two proposed California laws meant to further guide against breastfeeding discrimination.

Federal Laws

Pregnancy Discrimination Act (PDA) – Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), prohibits discrimination based on an employee currently being pregnant, as well as post pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. In other words, while the PDA focuses on pregnant employees it does provide some protection for employees who are breastfeeding or nursing. In 2015 the Equal Employment Opportunity Commission (EEOC) officially adopted the position that lactation is protected by the PDA.  Accordingly, failure to allow for time to express breastmilk could result not only in FLSA violations, but also a discrimination lawsuit under the PDA. Further, under the PDA, employers may not engage in adverse employment actions on the basis of an employee’s lactation needs, yet the PDA does not require special accommodations.

Fair Labor Standards Act (FLSA) – The Patient Protection and Affordable Care Act (ACA) modified the Fair Labor Standards Act (a law that establishes basic job protections like minimum wage and overtime pay) to require that covered employers provide eligible employees with the right to pump breast milk on the job. Under the Nursing Mothers Provision, for up to one year after a child’s birth, covered employers must grant eligible employees 1) reasonable break time to express breast milk for a nursing child for one year after the child’s birth; and 2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used to express breast milk. The law also protects workers from retaliation (like reassignment to a less desirable job, taking away job duties or benefits, or firing) for asserting their rights or filing a complaint about these issues, if they seek to assert these rights on the job.

State Laws  breastfeeding discrimination

California has its own requirements for how many employees an employer must have to be subject to FLSA’s mandatory accommodations. California employers with fewer than 50 employees are not subject to the FLSA break time requirement for nursing mothers if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply. California law requires employers to provide a reasonable amount of break time to accommodate employees and make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee’s work area, to express milk in private.

Several California jurisdictions have adopted their own workplace policies in this area.  For example, San Francisco’s Lactation in the Workplace Ordinance went into effect on January 1, 2018, and requires businesses to provide employees with breaks and a designated location for lactation. Employers must also implement policies that notify employees of their right to an accommodation for lactation. The ordinance also requires newly constructed or renovated buildings designated for certain uses to include lactation rooms, and amends the San Francisco building code to specify technical specifications of lactation rooms.

Proposed Bills in the California Legislature

There are currently two proposed bills in the California legislature that would expand employer obligations for providing nursing accommodations.

Assembly Bill 1976 by Assemblywoman Monique Limón, amends current law to specify that employers have to make a reasonable effort to provide a room “other than a bathroom” (not just other than a “toilet” stall) to accommodate such employees. On April 19, AB 1976 was referred to the Senate Committee on Labor and Industrial Relations.

Senate Bill 937 by Senator Scott Weiner would require employers to provide a lactation room (other than a bathroom) that shall be “in proximity to the employee’s work area, shielded from view, and free from intrusion.” SB 937 also specifies that the lactation room must (1) be safe, clean, and free of toxic or hazardous materials, (2) contain a surface to place a breast pump and personal items, (3) contain a place to sit, and (4) have access to electricity.  The bill also requires employers to provide access to a sink with running water and a refrigerator in close proximity to the employee’s workspace. SB 937 also specifies requirements for employers with fewer than five employers, as well as compliance requirements for employers with multitenant buildings. On April 18, SB 937 was re-referred to the Senate Committee on Transportation and Housing for a hearing on April 24.

California Employment Lawyers

We will keep you posted on AB 1976 and SB 937 as these bills develop in the legislature. In the meantime, if you feel you have not been afforded the proper accommodations or the breaks you are entitled for breastfeeding or lactation, don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Should you have questions about your rights as a nursing mother, call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

wage and hour lawsuit

Protecting California Employees Workers

When seeking lawyers committed to protecting the rights of California employees or workers, look for experienced, and proven, wage and hour legal specialists. It can take a lot of bravery to stand up to an employer who refuses to pay you fair wages or the overtime you deserve, or who requires you and other employees to work under unsafe conditions or without adequate rest periods. Retaining a qualified California attorney will make it easier for you to stand up for your rights and win your case.

You are entitled to all of your earned compensation in California. This includes your hourly or salary wages, overtime, commission, bonuses, off-the-clock work, and vacation time that is unused upon termination of employment.

Our firm has been serving California employees and workers, individuals and families in Los Angeles, San Diego, San Francisco, Sacramento, and throughout California since 1981. As demonstrated in the number of cases we have won for California employees and workers, we are dedicated to helping people across California harmed by the negligence or wrongdoing of corporate America. We has secured large settlements on behalf of employees, appearing in state and federal courts throughout California. No matter the complexity of your case or your employer, we are prepared to advocate on your behalf.

The firm handles most employment cases on a contingency basis, meaning we are not paid unless you win and receive compensation. Meet the team who has dedicated their work to issues of unpaid wages, overtime, rest breaks, harassment, discrimination, and more.

Protecting California employees Los Angeles lawyers

Protections Against Employment Discrimination

Employment Discrimination 

Employment discrimination occurs when an employee or job applicant is treated unfavorably because of his or her race, skin color, national origin, gender, disability, religion, or age. It is illegal to discriminate in any facet of employment, so workplace discrimination extends beyond hiring and firing and encompasses nearly every employment decision, from applications and interviews to assignments and transfers, promotions, pay, and benefits.

In addition to state laws, numerous federal laws make employment discrimination illegal.

  1. Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in hiring, discharge, promotion, referral, and other facets of employment, on the basis of race, color, national origin, sex, or religion. This is enforced by the Equal Employment Opportunity Commission (EEOC).
  2. Americans with Disabilities Act (ADA) – The ADA makes it unlawful to discriminate against people with a disability, a record of a disability, or who are regarded as having a disability.
  3. Pregnancy Discrimination Act (PDA) – Employers are required to handle pregnancy in the same way that they would handle a temporary illness or other non-permanent condition that would necessitate special consideration. Pregnancy, childbirth, and related medical conditions must be treated the same as any other medical condition with respect to leave policies, health insurance, job assignments, etc. for both employees and job applicants.
  4. Federal contractors and subcontractors must take affirmative action to guarantee equal employment opportunity without regard to race, religion, gender, or national original when hiring or in the workplace. these factors. Executive Order 11246 is enforced by the Office of Federal Contract Compliance Programs (OFCCP).

Examples of employment discrimination include, but are not limited to: employment discrimination California lawyer

  • Denying select employees from receiving benefits
  • Discriminating when selecting employees for layoffs
  • Using protected classes (e.g. age, race, color) when issuing promotions
  • Paying equally-qualified employees different salaries due to race, age, religion, etc.
  • Excluding potential employees during job advertisements and recruitment
  • Denying certain employees the ability to use company facilities

Speaking with legal counsel is the right action to take if you are in one of these protected classes and feel you have been a victim of discrimination. The links below provide more information about different types of employment discrimination and the ways leading employment lawyers at Kingsley & Kingsley can assist you with your specific situation.

The California lawyers with Kingsley & Kingsley have the experience, ability, and desire to successfully navigate the legal process with you.  For a free initial consultation, don’t hesitate to call our toll free number (888) 500-8469 or click here to contact us regarding your case.

Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)