Employers May Not Discriminate for Prior EEOC Complaints

Posted by on Jan 3, 2023 in Newsflash | 0 comments

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. The U.S. Equal Employment Opportunity Commission (“EEOC”) enforces Title VII and other antidiscrimination employment laws. Employees must file a complaint with the EEOC before filing a lawsuit alleging discrimination under Title VII. Title VII also prohibits discrimination against an employee based on such employee’s exercising of rights under the law. For example, employers may not retaliate against an employee for making a discrimination complaint or filing a charge of discrimination, even if such complaint or charge was made against a prior employer. In a recent press release, the EEOC announced that an Alabama employer had paid $60,000 to settle a retaliation lawsuit filed by the EEOC. The lawsuit alleged that the employer had made an offer of employment to a woman, but then revoked the offer once it learned that she had filed an EEOC charge under Title VII against her previous employer. The EEOC noted that retaliation is the most common type of charge filed with it and that employers should be aware that the retaliation provisions apply to current and former employees. All employers should be conscious of and be prepared to defend their reasons for terminating or refusing to hire certain individuals so that they are not subject to complaints or lawsuits alleging violations of Title VII. Employers should be especially careful in how they treat employees or job applicants who have filed a complaint against them or a previous employer. Employers who have questions regarding how to handle any such situation should contact Navigato &...

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New Cal/OSHA COVID-19 Standard

Posted by on Jan 3, 2023 in Newsflash | 0 comments

Since early 2020, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) has enacted many different rules and regulations regarding the COVID-19 pandemic. All such rules and regulations were enacted as emergency temporary standards (“ETS”) which were set to expire after six months but were ultimately extended by Governor Newsom. On December 15, 2022, Cal/OSHA voted to enact a new, non-emergency standard. The new standard will take effect in mid-January 2023 and will be effective for two years. The new standard will have some differences, but also some similarities, to the prior ETS. The ETS currently requires employers to maintain an employee’s pay and benefits during isolation and quarantine due to a work-related exposure. The new standard will eliminate this pay requirement. However, local jurisdictions may decide to pass local regulations which provide COVID-19-based sick leave benefits. The new standard makes major changes to the testing of employees for COVID-19. The ETS required employers to screen employees for symptoms prior to beginning their workday and to provide free tests to symptomatic employees. Neither of these requirements will exists under the new standard. Both the ETS and the new standard include requirements for how to handle non-major outbreaks (three cases within an “exposed group” in a 14-day period) and major outbreaks (20 cases within an exposed group in a 30-day period). Employers will still need to report major outbreaks to Cal/OSHA but will no longer need to report non-major outbreaks. In addition, employers will no longer need to evaluate whether six-foot physical distancing would be an appropriate measure to prevent further spread during a non-major outbreak. Under the new standard, employers will no longer have to maintain records of the steps taken to implement the written COVID-19 Prevention Program. However, employers must maintain records for two years of all employees who tested positive for COVID-19. These are just some of the many changes and similarities between the new standard and the ETS. To ensure compliance with Cal/OSHA requirements and the safety of their employees, employers should review the new standard on the Cal/OSHA website as well any information provided by local health...

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Fraudulent Payments Covered by Cyber Insurance

Posted by on Dec 1, 2022 in Newsflash | 0 comments

Everyone has received fraudulent or phishing email in which the sender attempts to obtain sensitive information or payments from an unsuspecting recipient. For this reason, many businesses now have cyber insurance which protects the business from the repercussions of such phishing emails. Like many insurance policies, what is covered under such policies is not always clear, but a recent court decision from the United States District Court for the District of Minnesota provided some clarity.[1] In that case, the policyholder’s accountant’s email was hacked and sent fraudulent invoices to the policyholder’s customers. Unfortunately, one customer sent $148,000 to the hackers. The policyholder sought coverage for the loss under its Technology Professional Liability policy, which included a cyber coverage provision. The insurance company denied coverage which led to a lawsuit. The policy provided coverage for “loss of business income” incurred by the policy holder as the direct result of a data breach which results in an actual impairment or denial of service of “business operations.” The insurance company argued that there was no loss of income and that the hacking of the accountant’s email address did not impair the policyholder’s business operations. In addition, the insurance company argued that the policyholder sought coverage for money that had already been earned rather than for money which would have been earned had the hacking not occurred. The Court disagreed with the insurance company’s arguments and held that the term “impairment” afforded the policyholder broader coverage than typical provisions which only cover a complete suspension of business operations. The Court explained that the policyholder’s business operations were impaired because it was unable to receive payment from its customers for the work it had already performed, and the accountant was unable to use his email account. Furthermore, the policyholder was prevented from earning money for which it had already performed work. This decision signifies the importance of the specific language in insurance policies as they relate to coverage for cybercrimes, phishing, etc. Some policies include specific cybercrimes or social engineering provisions while others include language similar to that of the case discussed here. If your company is the victim of a cybercrime, you should immediately notify all insurance companies. [1] Fishbowl Sols. v. The Hanover Ins....

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Rounding Employee Time

Posted by on Dec 1, 2022 in Newsflash | 0 comments

Many employers round employees’ time using predetermined intervals, such as rounding to the nearest five minute or fifteen-minute increment. While this is common practice, a recent California Court of Appeal decision[1] held that rounding employee time is no longer permitted under California law. In that case, Home Depot employees filed a class action lawsuit alleging that Home Depot’s time rounding policy resulted in unpaid minimum wages and overtime wages. The rounding policy at issue rounded all non-exempt employees’ time to the nearest quarter-hour. Home Depot argued that the policy did not violate any labor laws because it was neutral on its face and as applied. Home Depot relied on two prior court decisions to support its argument and also provided evidence that the rounding policy benefitted the employees as a whole. The trial court agreed with Home Depot’s argument and ruled in its favor. The plaintiffs then appealed the decision, and the Court of Appeal reversed the trial court’s decision. In reaching its decision, the Court of Appeal disagreed with the two prior cases and held that time when an employee was clocked in was working time. The Court of Appeal noted that it did not matter that rounding time is simpler and easier to calculate. The Court further noted that it is now easier for employers to precisely track employees’ time down to the minute because of technological advancements. In light of the Court’s decision, employers should update their time tracking policies so that employees’ time is not rounded. This is particularly true for employers who use software or other advanced technology to track employee time, rather than using old fashioned methods such as handwritten timecards. Companies with questions regarding their time tracking policy should consult with Navigato & Battin. [1] Camp v. Home Depot U.S.A.,...

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Updated EEOC Poster Required to be Posted by Employers

Posted by on Nov 1, 2022 in Newsflash | 0 comments

Employers are required to display many posters and notices in a location which is visible to all employees. These notices and posters cover topics such as minimum wage, rest breaks, workers’ compensation, and insurance. Under federal law, employers are required to display a notice from the U.S. Equal Employment Opportunity Commission (“EEOC”). The EEOC’s purpose is to enforce federal laws which prohibit discrimination against job applicants or employees based on race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information. Whether, and to what extent, the EEOC applies to an employer depends on the number of employees. Under the EEOC, all employers with at least one employee are covered by a law which requires equal pay for equal work for all employees regardless of gender. Employers with 15 to 19 employees are also covered by laws which prohibit discrimination based on race, color, religion, sex, national origin, disability, and genetic information. Lastly, employers with 20 or more employees are covered by the same laws as those with 15 to 19 employees in addition to a law which prohibits discrimination based on an employee being age 40 or older. On October 20, 2022, the EEOC announced that it had released a new poster titled “Know Your Rights” which must be displayed by employers with 15 or more employees. The new poster replaces an older version which was titled “EEO is the Law.” The new poster must be displayed in a location where employees will see it, such as a breakroom. If some or all employees work remotely, employers should post the EEOC updates on the company website where employees will see it or make it available in a different way, such as email. Both the physical poster and an electronic version are available on the EEOC’s website. While there is not yet a formal compliance date, any employer who fails to display the updated poster once a compliance date has been announced may be subject to a fine of up to $612. In addition, the failure to display the poster can be considered evidence of bad faith in an employment discrimination lawsuit. All employers with 15 or more employees should obtain and post the new EEOC poster as soon as possible. In addition, all employers, regardless of size, should make sure that they have displayed all other posters and notices required by federal, state, or local law. If you have questions or would like to discuss such requirements, please contact Navigato &...

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Stricter Regulations for Tracking Employee Vehicles

Posted by on Nov 1, 2022 in Newsflash | 0 comments

It is not uncommon for employers to track their company vehicles to monitor employee efficiency or prevent vehicle theft. Currently, an employer may track a vehicle driven by an employee if the vehicle’s registered owner, lessor, or lessee has consented to the use of an electronic tracking device with respect to the vehicle.[1] Essentially, an employer may track a vehicle driven by an employee but which is owned or leased by the employer without the employee having to consent to such tracking (so long as the employer itself consents). Recently, a new law[2] was approved by Governor Newsom which will significantly change the legal requirements for tracking vehicles driven by employees. The new law covers a variety of issues related to motor vehicles and will take effect January 1, 2023. Regarding vehicle tracking, the new law states that “[a]n employer, or a person acting on behalf of the employer, shall not use an alternative device to monitor employees except during work hours, and only if strictly necessary for the performance of the employee’s duties.” “Monitoring” has a broad definition under the law, and includes “locating, tracking, watching, listening to, or otherwise surveilling the employee.” Unfortunately, the law does not define what “strictly necessary” means, thus making it somewhat unclear when tracking will be authorized under the new law. Therefore, employers who currently monitor or are considering monitoring vehicles driven by their employees should re-evaluate whether it is essential to do so. All employers who choose to monitor their vehicles’ whereabouts must notify their employees of the tracking. The notification to employees must include the following: (A) a description of the specific activities that will be monitored; (B) a description of the worker data that will be collected; (C) a notification as to whether the data gathered through monitoring will be used to make or inform any employment-related decisions, including, but not limited to, disciplinary and termination decisions, and, if so, how, including any associated benchmarks; (D) a description and the names of any vendors or other third parties to which information collected through monitoring will be disclosed or transferred; (E) a list of which of the employer’s staff will have access to the data; (F) a description of the dates, times, and frequency that the monitoring will occur; (G) a description of where the data will be stored and the length of time it will be retained; and (H) a notification of the employee’s right to disable monitoring, including vehicle location technology, outside of work hours. Employers who fail to comply with the law’s notice requirements can be fined $250 for an initial violation and $1,000 per subsequent violation. Such fines are calculated per employee, per violation, and per day and thus could equate to a substantial amount rather quickly. The law also provides protection from retaliation for employees who remove or disable the monitoring device to prevent tracking outside of work hours. Employers who have questions regarding what may be considered “strictly necessary” or how to comply with the notice requirements should consult with Navigato & Battin. [1] California Penal Code Sec. 637.7. [2] Assembly Bill No....

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Executives May be Liable for Employee Wage Claims

Posted by on Oct 3, 2022 in Newsflash | 0 comments

If an employee is owed back wages, it is common practice for the employee to bring a claim against their employer with the Division of Labor Standards Enforcement (“DLSE”) or file an action in the Superior Court. California Labor Code §558.1 states that “any employer or other person acting on behalf of an employer” who contributes to or causes a wage violation “may be held liable as the employer for such violation.” Until recently, it was not always clear which individuals might be considered one of those “other person[s] acting on behalf of an employer” under §558.1, as guidance on exactly how much involvement an individual had to have with respect to the wage and hour violations at issue was lacking. However, the California Court of Appeal recently determined that an executive of an employer may be held personally liable for any wages owed to an employee who files such a claim.[1] In Seviour-Iloff, employees had filed a claim with the DLSE alleging that they were owed back wages. The Labor Commissioner found that the employees were owed back wages and that the employer’s Chief Executive Officer was personally liable for such wages. The employer and the CEO appealed the DLSE ruling to the Superior Court, which held that the CEO was not personally liable under §558.1. The employees then appealed the Superior Court’s ruling and the Court of Appeal held that the language of §558.1 gives the employee discretion to choose whether or not to pursue wage claims against a person “acting on behalf of an employer” who causes a wage violation, in addition to pursuing claims against the employer itself. However, once that decision is made by the employee the court does not have discretion in holding such individuals personally liable for the wage violations (assuming it is established that they are in fact involved in the violations). Thus, the Court of Appeal reversed the Superior Court’s ruling, finding the CEO was in fact personally liable for the wage violations. The Court of Appeal’s ruling means that executives should be more cautious and aware of any potential wage violations because they may be held personally liable for such wage violations (if they contributed to the violations in any way). Employers and executives can help prevent wage violations by posting required notices where employees will see them and by making sure that employees take rest and meal breaks, receive proper pay statements, and do not exceed the maximum number of hours they are allowed to work without receiving overtime pay. Regularly auditing your payment and recordkeeping practices with a knowledgeable employment attorney can go a long way towards cutting off this type of liability. If you have questions or would like to discuss such an audit, please contact Navigato & Battin. [1] Seviour-Iloff v. LaPaille (2022) 80 Cal.App.5th...

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Drug Testing Employees for Marijuana to be Prohibited

Posted by on Oct 3, 2022 in Newsflash | 0 comments

Governor Newsom recently signed Assembly Bill 2188 (“AB 2188”) into law, which prohibits drug testing of employees for off-duty marijuana use. AB 2188 is an amendment to the Fair Employment and Housing Act (FEHA), which is intended to prevent employment discrimination, and is effective as of January 1, 2024. Specifically, AB 2188 prohibits an employer from discriminating against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, except for preemployment drug screenings; or (2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. AB 2188 does not prohibit all drug tests which test for marijuana, as it still allows tests which determine if an employee is currently under the influence of marijuana (as contrasted with many current types of testing, which detect relatively recent use or exposure but which do not reflect whether the employee is under the influence of cannabis based on the appearance of those non-psychoactive cannabis metabolites). Employers will also still be allowed to prohibit employees from possessing or using marijuana while they are at the workplace or otherwise working. There are certain categories of employees who are excepted from AB 2188 and who may still be tested for off-duty cannabis use. The exceptions include employees in the construction field, employees whose position requires a federal background check, employees who are required by law to be tested, and employees who work at employers that receive certain federal funding. It is important for employers to prepare for the enactment of AB 2188 by evaluating their current drug testing procedures to ensure that they comply with the new law. In addition, employers who receive federal funding should begin to determine if their employees may fall within one of the exceptions to AB 2188. Further, all employers should be aware of any laws which require their employees to be drug...

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Websites are not a Public Accommodation under the ADA

Posted by on Sep 1, 2022 in Newsflash | 0 comments

Title III of the Americans with Disabilities Act (“ADA”) prohibits public accommodations from discriminating on the basis of disability and requires such public accommodations to be accessible. Historically, making public accommodations accessible required installing ramps, handrails, and making other physical alterations to property. In recent years, ADA plaintiffs and their attorneys have more frequently asserted violations of the ADA and California’s Unruh Civil Rights Act (“Unruh Act”) based on allegations that companies’ websites were not accessible to those with visual impairments and other disabilities. Among other things, websites can be made more accessible to those with visual impairments by ensuring that the website is compatible with screen reading software. In a recent case[1], a visually impaired individual filed suit against a company alleging violations of the ADA and the Unruh Act because his screen reader software did not work with the company’s website. The company is an online-only business, meaning that it has no physical locations for the public or consumers to visit. To succeed on his claim, the plaintiff needed to prove that the company had committed intentional discrimination or had violated Title III of the ADA. The plaintiff first alleged that the company committed intentional discrimination by failing to address his complaints regarding the accessibility of the website. The California Court of Appeals held that the company’s failure to address a complaint did not constitute intentional discrimination. The Court then turned to whether the alleged inaccessibility of the website violated Title III of the ADA. In its analysis, the Court looked at the language of the ADA and the definition of “public accommodation.” In doing so, the Court noted that the definition included terms such as “place” or “facility,” which indicate a physical location as opposed to an online presence. Whether websites for online-only businesses are public accommodations has been a source of dispute, with Congress and the Department of Justice failing to provide any clarity on the issue despite recognizing the confusion in the field. The Ninth Circuit Court of Appeals, which rules on appeals from California federal courts, has held that online-only businesses are not public accommodations. The takeaway from the Martinez Court’s decision is that online-only businesses which operate in California are not currently required to comply with the public accommodation requirements under the ADA. Although it would be best practice for a business to be accessible to all, there are not any penalties for online-only businesses who fail to make their websites accessible. However, it is important that online-only businesses do not intentionally discriminate, as that would expose them to potential liability under the Unruh Act. [1]  Martinez v. Cot’n Wash, Inc., 2022 WL 3025828 (Cal. Ct. App....

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