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.)

SCOTUS Rejects Narrow Construction FLSA Overtime Exemption

FLSA Overtime Exemption

The Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to covered employees, but provides numerous categories of workers an overtime exemption. On April 2, 2018, the Supreme Court of the United States (SCOTUS) rejected the longstanding principle that these FLSA exemptions must be construed narrowly, holding that service advisors at a California automobile dealership are exempt from the overtime requirements under the FLSA.

Background

As we covered in previous posts about overtime exemptions, at issue in Encino Motorcars, LLC v. Navarro was the “exempt” classification of service advisors at a car dealership. The service advisors premised their argument for overtime on a 2011 Department of Labor rule that expressly excluded service advisors from the definition of “salesman.”  The specific section of the FLSA is section 213(b), which exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles ….” Service advisors sell, but they sell mechanic service rather than cars, and they are not mechanics themselves. The advisors argued that they fall into a gap in 213(b): they are not “salesm[e]n … primarily engaged in selling … automobiles,” and they are not “partsmen, or mechanic[s] primarily engaged in … servicing automobiles.” In response, the dealer argued that service advisors are plainly “salesm[e]n … primarily engaged in … servicing automobiles ….”

The district court found that the FLSA overtime exemption applied to service advisors. The Ninth Circuit reversed, deferring completely to the 2011 DOL rule.  The Supreme Court rejected this conclusion, holding that the regulation was procedurally defective and courts should not defer to it or rely upon it.  The Supreme Court remanded the case to the Ninth Circuit for reconsideration. The Ninth Circuit again found that service advisors were entitled to overtime because they do not fall within the exemption.

SCOTUS Opinion  FLSA overtime exemption

In its second look at this particular exemption in recent years, the Supreme Court again reversed, basing its conclusion on what it called a “best reading” of the statute’s text. The Court held 5-4 with its opinion reading, “We reject this principle as a useful guidepost for interpreting the FLSA…. Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to give [them] anything other than a fair (rather than a “narrow”) interpretation.’”

Justice Clarence Thomas’ opinion noted that the FLSA contains “over two dozen” exemptions, that the exemptions “are as much a part of the FLSA’s purpose as the overtime-pay requirement,” and that “[w]e have no license to give the exemption[s] anything but a fair reading.” The Court further held that the exemption was not limited to sales employees primarily engaged in selling automobiles and ultimately held that service advisors were exempt because they are “salesm[e]n . . . primarily engaged in . . . servicing automobiles.”

In dissent, Justice Ginsburg, along with Justices Breyer, Sotomayor, and Kagan, sought to emphasize how the majority’s holding was a stark departure from precedent. Underscoring the importance of the Court’s holding regarding the interpretation of FLSA exemptions, Justice Ginsburg wrote that the Court was overruling “half a century” of precedent by rejecting the narrow construction principle.

Conclusion

The Court’s decision is significant as it abandons the longstanding principle that FLSA exemptions are to be construed narrowly in favor of non-exempt status. Generally speaking, courts will now need to place exemptions on the same statutory and interpretive footing as the substantive overtime requirements in the statute. For example, the more common FLSA exemptions, such as the executive, administrative and professional employee exemptions may now be subject to the broader “fair reading” standard in cases that come before the High Court. 

The lawyers at Kingsley & Kingsley will continue to monitor SCOTUS opinions on FLSA exemptions. In the meantime, should you have questions about California’s wage and hour laws, don’t hesitate to contact one of our leading California employment lawyers.

Call and speak to an experienced California lawyer toll-free at (888) 500-8469.

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

 

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.)

A Closer Look at Two Forms of Workplace Sexual Harassment

Workplace Sexual Harassment – Defined

According to the EEOC, sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, as well as the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Under Title VII, there are two recognized types of workplace sexual harassment claims:

Quid pro quo sexual harassment is when a person in authority, usually a supervisor, demands that subordinates tolerate sexual harassment as a condition of employment decisions like promotions, assignments, or keeping your job. Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature is quid pro quo sexual harassment when:

  • submission to such sexual conduct is  explicitly or implicitly a term or condition of employment or
  • submission or rejection of the sexual conduct is the basis for employment decisions.

A single instance of harassment is sufficient to sustain a quid pro quo claim (e.g., a superior demands you kiss her/him in order to keep your job), while a pattern of harassment is typically required to qualify as a hostile work environment.

A hostile work environment is created when sexual harassment makes a workplace environment intimidating, hostile, or offensive. Unwelcome sexual advances, requests for sexual favors, and other verbal sexual conduct is hostile environment sexual harassment when:

  • the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or
  • the conduct creates an intimidating, hostile, or offensive working environment.

Elements which courts analyze in determining whether a hostile environment harassment claim is valid include:

  • Whether the conduct was verbal, physical, or both;
  • Frequency of the conduct;
  • Whether the conduct was hostile or patently offensive;
  • Whether the alleged harasser was a co-worker or supervisor;
  • Whether others joined in perpetrating the harassment; and
  • Whether the harassment was directed at more than one individual or singled out the victim.workplace sexual harassment

Misconceptions of Workplace Sexual Harassment Claims

The EEOC reminds us that sexual harassment can occur in a variety of circumstances, including but not limited to the following:

  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser’s conduct must be unwelcome.

California Employment Lawyers

An attorney can advise you on your alternatives including whether the conduct you experienced in the workplace amounts to sexual harassment. The lawyers with Kingsley & Kingsley located in Los Angeles, California have a wealth of experience fighting for victims of sexual discrimination and harassment. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email here.

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

Cal/OSHA Approves Hotel Housekeeping Employee Injury Regulation

Protecting Against Employee Injury

Following years of evaluation, on March 9, 2018, the Cal/OSHA Standards Board approved a standard on “Hotel Housekeeping Musculoskeletal Injury Prevention.” The Office of Administrative Law approved the new regulation that will require hotels and other lodging establishments (i.e. resort, bed and breakfast) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.”

Background

The mission of the Division of Occupational Safety and Health, better known as Cal/OSHA, is to protect and improve the health and safety of working men and women in California and the safety of passengers riding on elevators, amusement rides, and tramways. Cal/OSHA works to achieve its mission by setting and enforcing standards; providing outreach, education, and assistance; and issuing permits, licenses, and certifications.

To provide proper guidance to California employers, Cal/OSHA included several key definitions in its most recent regulation:

  • Musculoskeletal Injury is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.”
  • Lodging Establishments is defined as establishments that contain sleeping room accommodations that are rented or otherwise provided to the public, such as hotels, motels, resorts, and bed and breakfast inns.
  • Musculoskeletal Injury Prevention Program, or MIPP, is a written program that addresses hazards specific to housekeeping. The standard specifies that the MIPP may be incorporated into an existing injury and illness prevention program (IIPP) or maintained as a separate program, and must be readily accessible each work shift to employees (including electronic access).

Under the new rules California hotel and other lodging establishments industry employers will be required to update their written Injury and Illness Prevention Plan (IIPP) to incorporate the following:

  1. Must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  2. The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  3. By October 1, 2018, effected employers must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  4. The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  5. Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

Important Takeaways for California Employers
The final regulation becomes effective July 1, 2018. However, California hotel and other lodging establishments industry employers now have until October 1, 2018, to roll-out their Musculoskeletal Injury Prevention Programs. These MIPPs must be compliant according to Cal/OSHA inspectors, including the ability to provide records of worksite evaluations and other records required by the MIPP to Cal/OSHA within 72 hours of a request.

employee injury

Questions about California Employment Law

At Kingsley & Kingsley, our attorneys work in a variety of practice areas throughout the state of California, with a central focus on helping the injured or mistreated individual who has suffered abuse at the hands of an employer, insurance company, or corporate entity. Our experienced trial lawyers work to level the playing field and fight for the rights of our clients, regardless of the size and power of the opposition. Should you have questions about California’s labor laws, 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 here.

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

Labor Department Announces FLSA Self-Audit Program

Self-Audit for FLSA Violations

On March 6, 2018, the U.S. Department of Labor (DOL) announced that it would soon be implementing its Payroll Audit Independent Determination (PAID) program. The PAID program will permit employers to self-report potential Fair Labor Standards Act (FLSA) violations without fear of exposure to liquidated damages. According to the DOL news release, the PAID program seeks to expedite resolution of minimum wage and overtime violations by limiting potential damages to solely the back wages owed. The DOL’s Wage and Hour Division (WHD) intends to employ the PAID program nationwide for 6 months, at which time it will evaluate the effectiveness of the program and its future options.

How the PAID Program Works

To participate in PAID, employers must first review information about PAID and compliance assistance materials on the WHD portion of the DOL website. Employers must then self-audit their pay practices for potential non-compliance. If the employer discovers a non-compliant practice, or believes its pay practices may be compliant but wishes to proactively resolve any potential claims, the employer must take four steps: 1) Identify the specific potential violations, 2) Identify affected employees, 3) Identify the timeframes in which each employee was affected, and 4) Calculate the back wages the employer believes are owed to each affected employee.

Upon receiving such a report from an employer, the DOL will request 1) the calculations conducted during the self-audit, 2) the scope of potential violations to be included in a release, and 3) a variety of certifications regarding due diligence and pay practice adjustments to avoid the same violations in the future. The DOL will assess back wages due and will prepare releases for affected employees, tailored to waive claims only for the identified violations for the time period during which back wages are paid.

Benefits to Employers and Employees

According to the DOL, the program is designed to appeal to both employers and employees. While employee participation in any settlement under the program remains voluntary, employees will receive 100 percent of the back wages paid, without paying litigation expenses, attorneys’ fees and other costs.
Employers may be enticed because the program does not impose penalties or liquidated damages. Employers who participate in the program are expected to correct pay practices going forward; employers who resolve an FLSA violation through the PAID program are ineligible to use the PAID program a second time to resolve the same issue in the future. Also, the PAID program is unavailable for employers currently under DOL investigation or in ongoing litigation concerning the reported FLSA violations.

California Employment Law

flsa violation

 

It will remain to be seen if the pilot program provides employers with an effective method to resolve FLSA wage claims that also avoids the cost of litigation and risk of being required to pay double the wages owed. Further, additional questions remain, to include:

1) Will the DOL’s expedition of outstanding back wage payments to employees nullify the employer’s liability for the same violations?, and

2) Is PAID limited only to the federal FLSA violations or will it ever encompass state wage and hour claims?

The California employment lawyers at Kingsley & Kingsley can answer your questions about state and federal wage and hour laws and we will continue to monitor the DOL’s updates regarding the PAID program. Should you have immediate questions about your rights as an employee, 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.)