Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Co-Chair, Global Employment and Labor Practice

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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Welcome to the MoFo ELC Blog

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislati

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Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

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Read our Employment Law Commentary blog for the latest insights in employment and labor law, covering issues from ADA compliance to trade secrets protection.

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DOJ Creates Initiative to Pursue Aggressive False Claims Act Enforcement Against DEI Programs and Civil Rights Violations

Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

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IS TIME UP FOR THE SEVERE OR PERVASIVE STANDARD? HARASSMENT CLAIMS IN 2020 AND BEYOND

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

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Cooper Spinelli is a member of the Litigation Department and part of the firm’s Employment & Labor Group. His practice focuses on trade secrets and restrictive covenants, employee mobility and executive disputes, whistleblower claims, and general business litigation.

Cooper J. Spinelli

Cooper Spinelli

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IS TIME UP FOR THE SEVERE OR PERVASIVE STANDARD? HARASSMENT CLAIMS IN 2020 AND BEYOND

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By almost any measure, the #MeToo movement has had a remarkable impact on workplace harassment law.  As of today, five states have extended their statutes of li

Discrimination

The World Health Organization (WHO) has now declared the current outbreak of the new coronavirus first identified in Wuhan, Hubei Province, China as a “Public Health Emergency of International Concern.” As more countries announce quarantine measures for travelers returning from Wuhan, businesses need to ensure that they are prepared to deal with the impact of the coronavirus in the workplace. In this alert, we share our recommendations for employers and answer some of the questions that businesses are likely to be asking. Read our <a href="https://www.mofo.com/resources/insights/200131-coronavirus-employers.html?utm_source=publication&utm_medium=email">client alert</a>.

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Managing Partner, London

Annabel is a partner at Morrison Foerster and co-Managing Partner of the London office.

Annabel Gillham

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David A. Newman draws upon his experience as a senior White House and U.S. Department of Justice (DOJ) attorney and his extensive background in government regulation and national security.

David A. Newman draws upon his experience as a senior White House and U.S. Department of Justice (DOJ) attorney and his extensive background in government regulation and national security to guide cli

David A. Newman

David A. Newman draws upon his experience as a senior White House and U.S. Department of Justice (DOJ) attorney and his extensive background in government regulation and national security to guide clients through sensitive matters pertaining to national security and global risk and crisis management.

David Newman

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Coronavirus: Steps Employers Should Be Taking

Coronavirus: Steps Employers Should Be Taking

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The World Health Organization (WHO) has now declared the current outbreak of the new coronavirus first identified in Wuhan, Hubei Province, China as a “Public H

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Coronavirus (COVID-19)

As we leave the 2019 Holiday Season, employers may be questioning whether they adequately accommodated various religions practices among their employees. Accommodations for religious practices often arise during the holiday season in two major contexts: (1) time off for religious observances; and (2) religious expressions in the workplace. Unfortunately, there are no bright-line rules to guide employers. With this employment law commentary, we provide some general principles to help employers better understand their obligations to provide religious accommodations.The Right to Religious Accommodation Under Federal LawThe primary federal law requiring employers to accommodate their employees’ religious practices is Title VII of the Civil Rights Act of 1964 (“Title VII”), which applies to all employers in the U.S. with 15 or more employees. Under Title VII, employers cannot discriminate against employees and applicants based on their religious practices or beliefs.[1] Title VII is administered and enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC has promulgated additional regulations further specifying an employer’s obligations to provide religious accommodations[2] and has also produced numerous other publications that further clarify both the act and the regulations.[3]For purposes of Title VII, religion includes “sincerely held” religious, moral, or ethical beliefs related to “ultimate ideas” about “life, purpose, and death,” including those that are not part of a well-known or organized religious tradition and those based on atheist or agnostic beliefs.[4] In addition to prohibiting discrimination, Title VII requires employers to provide reasonable accommodations to employees and applicants whose religious beliefs and practices require some variance from the employer’s policies and practices so long as those accommodation do not cause an “undue hardship” to the employer.[5] Common examples of accommodations include time off, schedule changes, transfers to new job positions, or exemptions from certain clothing or appearance policies. Generally, an accommodation causes an undue hardship if it would impose more than a de minimis cost upon the employer’s operations, including monetary costs and other effects on efficiency, safety, and other employees.[6] The standard for undue hardship applicable to religious accommodations under Title VII is lower than, and should not be confused with, the standard for reasonable accommodations for disabilities required by the Americans with Disabilities Act (ADA) and other state laws.Despite this relatively low standard, employers must make an effort to offer accommodations that are reasonable and not overly burdensome. Employers should not rely upon existing policies alone if an employee expresses concern that those policies do not accommodate their religious beliefs or practices. Employees do not always have to actually request an accommodation for their religious practices or beliefs. Once an employer becomes aware of a conflict between the employee’s religious beliefs and the employer’s work requirements, the employer generally should engage in an interactive process with the employee to determine whether an accommodation can be made.[7]If it believes that an employee’s requested accommodations would cause undue hardship, the employer should identify and offer alternatives to the employee that eliminate the conflict between the employer’s policies and the religious practice or belief. If none of these alternatives are found to suffice, the employer should only reject the employee’s proposals to the extent it can demonstrate that those requests will cause an undue hardship. Employers should document their efforts to identify accommodations and their reasons for rejecting any proposals made by their employees. It is important that the employer, when rejecting a requested accommodation, explain what costs the proposed accommodation would impose or how the accommodation would negatively impact the work environment, other employees, or customers, and the employer should inform the employee of these concerns so that both sides can consider possible alternatives.Time Off for Religious ObservanceOne of the most common accommodation requests for religious reasons is time off for religious observance. Many faiths require that their adherents regularly commit time to certain practices at particular times of day or on particular days of the week. Others may observe annual holidays that entail participation in customary or ceremonial practices that conflict with performing work on those days.Numerous courts have addressed the right to time off in observance of religious practices. Whether providing an employee with time off will cause an undue hardship on an employer varies substantially based on the frequency of the request, the size of the employer, the nature of the work, and the availability of other employees.[8] An employer’s obligations under a union contract may also be a factor in whether a requested accommodation will be unduly burdensome. For example, accommodating an employee’s request that requires giving preferential treatment that conflicts with the rights of other employees based on seniority may not be an accommodation an employer needs to provide.[9] On the other hand, labor organizations are also prohibited from discriminating on the basis of religion and have an obligation to provide reasonable religious accommodations.[10]Typically, employers may attempt to accommodate religious requests for time off through many their policies, such as existing paid time off or vacation policies, permitting employees to trade shifts with other employees, providing alternative shift schedules, or even offering alternative job positions. Generally, failure to accommodate claims are not successful when the employer can show that it has offered an employee a combination of options to comply with the employee’s religious needs that go beyond the employer’s existing policies. In cases where the employer offered only one means of accommodating an employee’s religious practice or has relied only on existing policies, however, the employees’ claims have tended to survive summary judgment.In one case, for example, an employer was able to show undue hardship at the summary judgment stage when an employee sought additional time off because the employer permitted the employee to take more half-day vacations than allowed by a collective bargaining agreement and actively worked to schedule the employee for shifts that would not conflict with the employee’s observation of the Sabbath in addition to vacation days, floating holidays, voluntary shift swaps with other employees, and unpaid leave time provided under existing policies.[11] By contrast, in another case, where the employer would not modify its existing vacation policy to accommodate the employee’s time off request for religious reasons, the court found that the employer could not show either that its offered accommodation was reasonable or that any further accommodation would cause an undue hardship at the summary judgment stage.[12]Religious Expression in the Work PlaceAnother common accommodation issue is the amount and form of religious expression that must be permitted in the workplace. Religious expression can come in many forms, including verbal expressions, office decorations, attire, and grooming. Whether a religious expression must be accommodated depends upon the content and context of that expression; simple religious greetings shared among welcoming employees are more likely to warrant accommodations than lengthy diatribes to unreceptive clients and customers. Although employers may be required to permit some forms of proselytization, religious salutations, or exceptions to their dress code,[13] if other employees or clients are disturbed or feel harassed by such conduct, the employer may be able to deny the request because it imposes an undue hardship.[14] For example, at least one court has held that employers need not grant exceptions to their anti-harassment policies for employees who use religious quotations to advocate anti-LGBTQ views.[15] Another court has also held that permitting employees to use religious salutations with some clients, such as “Have a Blessed Day,” but not with those clients who had expressed discomfort, was a reasonable accommodation.[16]With respect to grooming, employers generally have had to show that an employee’s non-conforming grooming practices pose some sort of safety-related risk, such as violation of a health or safety code. So, for example, employers have been able to show an undue hardship in multiple cases where an employee’s facial hair prevented that employee from being able to properly use face masks as required by applicable health and safety laws for him to perform his job.[17]A Brief Note Regarding State LawIn addition to the requirement to provide religious accommodation under federal law, several states have laws that require religious accommodations. Though many of these laws often follow accommodation standards similar to federal law, some states apply different standards. For example, the California Fair Employment and Housing Act (FEHA), as amended by the Workplace Religious Freedom Act of 2012,[18] applies to employers with five or more employees, rather than only those with 15 or more. Under FEHA, the test for undue hardship requires a showing of “significant difficulty or expense.”[19] California law specifically requires that an employer explore “any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance or permitting those duties to be performed at another time or by another person.”[20] California law also specifically states that accommodations that require segregating employees are not reasonable.[21]Given the possible variation among religious accommodation tests, it is important to be mindful of the possible effect of state law when assessing accommodations.ConclusionGiven the complexities and nuances of accommodating religious beliefs and practices for employees and applicants, employers should consider developing well-defined procedures for handling such accommodations. These procedures can take many forms, but generally employers should keep the following points in mind when crafting such procedures:<ul><li>Train managers and human resource personnel on addressing religious accommodation practices of employees.</li><li>Whenever there is a possible conflict between an employee’s or applicant’s religious practices and the employer’s policies, employers should consider engaging in the interactive process to explore possible accommodations; </li><li>Assign designated personnel trained in religious accommodations to handle the interactive process to try to identify reasonable accommodations that will not cause an undue hardship to the employer and that are consistent with other accommodation requests; and</li><li>Create different standards and procedures for states, such as California, that have more stringent tests for religious accommodations.</li></ul>Even with robust accommodation procedures in place, some religious accommodation requests will still perplex employers. In those instances, consider consulting with counsel before rejecting the proposed religious accommodation. [1] 42 U.S.C. § 2000e et seq.[2] 29 CFR § 1605.2.[3] See “Questions and Answers: Religious Discrimination in the Workplace,” available online at <a href="https://www.eeoc.gov/policy/docs/qanda_religion.html">https://www.eeoc.gov/policy/docs/qanda_religion.html</a>; EEOC Compliance Manual, “Section 12: Religious Discrimination,” available online at <a href="https://www.eeoc.gov/policy/docs/religion.html">https://www.eeoc.gov/policy/docs/religion.html</a>.[4] 29 CFR § 1605.1.[5] 42 U.S.C. § 2000e(j).[6] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).[7] See E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).[8] Opuku-Boateng v. California, 95 F.3d 1461.[9] Virts v. Consolidated Freightways, 285 F. 3d 307.[10] 42 U.S.C. § 2000e-2(c).[11] See, e.g., E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 315 (4th Cir. 2008).[12] See Jacobs v. Scotland Mfg., Inc., No. 1:10CV814, 2012 WL 2366446 (M.D.N.C. June 21, 2012).[13] See, e.g., Banks v. Serv. Am. Corp., 952 F. Supp. 703 (D. Kan. 1996); Rivera v. Choice Courier Sys., Inc., 2004 WL 1444852 (S.D.N.Y. June 25, 2004).[14] See, e.g., Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir.1995) (holding that requirement that employee cover up graphic images was a reasonable accommodation).[15] Peterson v. Hewlett-Packard Co., 358 F.3d 599, 604 (9th Cir. 2004).[16] Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 476 (7th Cir. 2001).[17] See, e.g., Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1384 (9th Cir. 1984); EEOC v. Sambo’s of Georgia, Inc., 530 F. Supp. 86.[18] Cal. Gov’t Code § 12940.[19] Cal. Gov’t Code §§ 12926(u).[20] Cal. Gov’t Code § 12940(1)(1).[21] Cal. Gov’t Code § 12940(l)(2).

Faithful Accommodations: What Employers Should Do When Addressing Religious Accommodations in the Workplace

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Faithful Accommodations: What Employers Should Do When Addressing Religious Accommodations in the Workplace

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As we leave the 2019 Holiday Season, employers may be questioning whether they adequately accommodated various religions practices among their employees. Accomm

FMLA, CFRA, NPLA, ADA, FEHA, NYPFL, SFPPLO.  The alphabet soup of leave laws with which employers must comply is enough to make the heads of even the most seasoned HR professionals and in-house counsel spin.  With an increasing number of municipalities jumping into the game, the number of laws keeps growing.  Realistically, mere mortals cannot memorize the details of each law, and, luckily, it is not necessary as long as they know how to spot issues and when to seek counsel.  Today, we address three key topics to help employers stay ahead of their leave of absence obligations: (1) recognizing leave issues buried within an employee’s questions, statements, or conduct; (2) keeping abreast of the existence of state and local laws in addition to the better-known federal laws; and (3) understanding the difference between the right to protected time off and the availability of full or partial wage replacement during time off. Recognizing Leave IssuesEmployee comments that might set off alarm bells for an experienced HR professional or in-house attorney may easily be overlooked by the front-line supervisors who have the most contact with employees.  It is crucial that supervisors and other people responsible for HR compliance be able to spot these issues. Employee rights to time off generally derive from the following sources:<ul><li>State and local paid sick leave laws;</li><li>The federal Family and Medical Leave Act (FMLA)[1] and state and local equivalents;</li><li>California’s Pregnancy Disability Leave law (PDL)[2] and similar laws in other jurisdictions;</li><li>Federal and state military leaves;[3]</li><li>Miscellaneous state leave laws protecting time off for jury duty, voting, witness duty, crime victims (domestic violence, sexual assault, stalking), emergency responders, school activities, organ donation, etc.;[4]</li><li>Paid vacation (not mandated by law, but employer must comply with its own policies); and</li><li>Time off beyond whatever the law or company policy mandates as a reasonable accommodation under the Americans with Disabilities Act (ADA), Section 503 of the Rehabilitation Act, and state equivalents.[5]</li></ul>Attorneys and HR professionals may think about leave issues in terms of these statutes, but the people who often have the most regular contact with employees—front line supervisors—do not typically think about employee issues in these legal buckets.  It is therefore important that supervisors and other company employees responsible for HR compliance be sensitized to an employee’s statements and actions that might implicate his or her right to leave.  More important than being able to distinguish among the finer points of PDL, FMLA, and ADA is the ability to recognize the following kinds of employee statements as possible triggers of a right to a job protected leave of absence:<ul><li>“My wife was wounded serving in Iraq and will be stuck in bed for the next two months.”  (FMLA and state military leave laws)</li><li>“Ugh.  I think I have the flu.”  (Federal FMLA and state law equivalents if the illness is sufficiently severe)</li><li>“My boyfriend hit me and I need Thursday morning off to go to court to get a restraining order.”  (Domestic violence leave under state law)</li><li>“My son has been suspended from school, and the principal wants to meet with me next week.”  (School leave under state law)</li><li>“The CIA is listening to my thoughts through my fillings.”  (Time off under the FMLA and state law equivalents for mental disability; reasonable accommodation under the ADA and state law equivalents)</li><li>“I’m sorry I’m late for work again.  I forgot to refill my Ritalin prescription.”  (Reasonable accommodation under the ADA and state law equivalents for ADHD)</li><li>“I realize I’ve used up all my FMLA time due to my surgery, but my doctor says I’ll be as good as new if I can just have a few more weeks off.”  (Reasonable accommodation under the ADA and state law equivalents)</li></ul>The time and resources devoted to training supervisors how to spot these issues will be time and resources well spent.  Not only will they help avoid lawsuits, but they may prevent morale problems and bad publicity.State and Local Regulation of Leaves From WorkCalifornia employers should know by now that California mandates paid sick leave, but some employers might not be aware that, as of January 2019, seven California cities have their own paid sick leave laws:  Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica.[6]  Some of these laws conflict with California’s law and with each other.  For employers with employees in other states, things get even more complicated.  For example, the state of New York does not have a paid sick leave law, but New York City does.[7]  Nearby New Jersey has a state paid sick leave law, but no local laws which would be preempted under the state law.[8]Family and medical leave laws pose similar issues for employers.  California employers with 50 or more employees have long had to comply with the federal FMLA and the California Family Rights Act (CFRA).[9]  Since January 1, 2018, smaller California employers with 20 or more employees must comply with the New Parent Leave Act (NPLA), which allows eligible employees to take up to 12 weeks of unpaid, job protected leave to bond with a new child.[10]  Like California, the state of New York has its own version of the FMLA—the New York Paid Family Leave Benefits Law (NYPFL),[11] and New Jersey has the New Jersey Family Leave Act (NJFLA).[12]  It is not only states and cities that traditionally have more favorable laws for employees that are getting into the act.  Tennessee, for example, does not have a state equivalent to the FMLA, but has the Tennessee Maternity Leave Act (TMLA), which provides leave for qualified individuals for adoption, pregnancy, childbirth, and infant nursing.[13] In almost every case where multiple laws apply to the same employee, the employer must comply with the law that offers the most protection to the employee.  To stay compliant, employers must be vigilant in keeping abreast of federal, state, and local laws in every location where the company has employees.  This obligation can be especially tricky for companies with a smattering of employees spread throughout the country.  Companies that have one sales representative in each state or region can face compliance challenges as can employers that permit employees to work remotely from a city or state where the company has no offices or other employees. Some employers minimize the compliance burden by adopting company-wide policies applicable to all employees.  This approach requires the employer to adopt a policy that complies with the most employee-friendly leave laws applicable at any company location.  Although doing so may cost the company more money, in return the employer gets consistency and avoids morale problems that might arise when employees in one city learn that a colleague working at a facility a few miles away receives more paid sick leave or baby bonding leave simply because of geography.  Even companies that go this route must remain vigilant.  Given the pace at which state and local laws are being enacted, today’s most protective law can quickly become tomorrow’s has-been.Distinguishing Between Protected Time Off and Wage Replacement Anyone responsible for administering leaves of absence should be mindful of these basic rules:<ul><li>Leave Entitlement ≠ Entitlement to Be Paid.</li><li>Entitlement to Be Paid ≠ Leave Entitlement.</li></ul>While these rules seem straightforward, employers sometimes confuse laws that guarantee employees time away from work with laws or programs that offer full or partial wage replacement while an employee is off work. California’s Paid Family Leave (PFL) is one of the bigger culprits when it comes to confusion.[14]  PFL provides up to six weeks of partial wage replacement to an eligible employee who needs time off to provide care for a seriously ill family member or bond with a new child.  PFL is a form of wage replacement funded through a payroll tax paid by employees, but it does not entitle employees to any time off or reinstatement.  In fact, a person need not even be employed to receive PFL so long as she or he is actively looking for work at the time the person needs to care for a family member.[15]  The state of New York, by contrast, has taken a different approach than California with New York’s Paid Family Leave Benefits Law (NYPFL).  NYPFL applies to all private employers that employ one or more employees and: (i) guarantees time off for reasons parallel to those under the FMLA; and (ii) provides partial wage replacement during leave.  The leave is funded by employee payroll taxes and is paid through Paid Family Leave insurance that the employer must secure. An Illustration of the Myriad Laws in ActionConsider a pregnant woman, Wilma, who works as the controller of the Acme Company, which has 15 employees in California.  Wilma becomes disabled and is ordered to bed rest for the last two months of her pregnancy.  California’s Pregnancy Disability Leave law (PDL) guarantees her up to four months off work due to the disability and the right to be reinstated to her position (or a comparable position if her original position no longer exists) upon end of the disability.  Wilma’s job is safe despite the small size of the Acme Company and her extended time off.  PDL does not, however, entitle Wilma to any pay during her disability leave.  Wilma will, however, likely be eligible for partial wage replacement through California’s State Disability Insurance (SDI) (funded through payroll deductions) after a one-week waiting period.[16]  Wilma may use accrued paid sick leave or possibly accrued vacation, during the waiting period. Wilma delivers the baby through a normal vaginal delivery and her doctor certifies her as disabled under PDL for six weeks after the birth.  Wilma then decides she wants a few months of maternity leave to bond with her new baby.  Wilma may be entitled to Paid Family Leave (PFL) to partially cover her wages during maternity leave, but the Acme Company is not legally obligated to provide Wilma with any time off for baby bonding.  With only 15 employees, the Acme Company is not covered by the CFRA or NPLA, which guarantees employees of larger employers up to 12 weeks off for baby bonding after the end of any pregnancy disability.  The Acme Company, with only 15 employees, may voluntarily offer employees time off for baby bonding, or the company may allow Wilma to use accrued vacation, but despite the availability of PFL to pay for time off with the baby, Wilma has no protected right to time off for baby bonding.If the Acme Company were located in New York instead of California, Wilma would be entitled to guaranteed time off for baby bonding and partial wage replacement under NYPFL.  On the other hand, New York does not have an equivalent to California’s PDL.  Unlike in California, the Acme Company in New York would not have been required to hold open Wilma’s job for the three and a half months she was disabled due to pregnancy and childbirth.  Acme Company might have decided that it could not function without a controller for more than three months and lawfully terminated Wilma’s employment before the baby was born.ConclusionThe patchwork of leave laws throughout the country creates many traps for the unwary.  Employers of all sizes in all states are well-served by ensuring that HR professionals and supervisors are trained and sensitive to the issues.  It is also crucial to stay abreast of the quickly expanding universe of laws and to consider ways of mitigating the compliance burden, such as adopting uniform company policies in all locations.[1] 29 U.S.C. § 2601 et seq.[2] Cal. Code Regs., tit.2, § 11042[3] See e.g., the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq.; FMLA, 29 U.S.C. §§2612(a)(1)(E), 2612(a)(3); Cal. Military & Vet. Code § 395.10.[4] California Labor Code §§ 230-230.8.[5] 42 U.S.C. § 12101; see also, e.g., California Fair Employment and Housing Act, Cal. Gov. Code § 12940; New York State Human Rights Law, Article 15, § 290 et seq.[6] Healthy Workplaces, Healthy Families Act of 2014, Cal. Labor Code §245 et seq.; Berkeley Paid Sick Leave Ordinance, Berkeley Municipal Code, Ch. 13.100; Emeryville Minimum Wage and Paid Sick Leave Ordinance, § 5-37.03; Los Angeles Minimum Wage Ordinance, §187.04; Oakland Paid Sick Leave ordinance, Oakland Code of Ordinances, § 5.92.030; San Diego Earned Sick Leave and Minimum Wage Ordinance, San Diego Municipal Code § 39.0101; San Francisco Paid Sick Leave Ordinance, San Francisco Administrative Code Ch. 12W; Santa Monica Minimum Wage Ordinance, Santa Monica Municipal Code Ch. 4.62.[7] New York City Earned Sick and Safe Time Act, N.Y.C. Admin. Code §§ 20-911 to 20-924.[8] New Jersey Earned Sick Leave, N.J.S.A. 34:11D-1.[9] California Family Rights Act (CFRA), Cal. Gov. Code § 12945.2[10] California New Parent Leave Act (NPLA), Cal. Gov. Code § 12945.6.[11] New York Paid Family Leave Benefits Law, final regulations, tit. 12 N.Y.C.C.R. Part 380 et seq.[12] New Jersey Family Leave Act, N.J.S.A. 34:11B-16[13] Tennessee Maternity Leave Act, Tenn. Code Ann. 4-21-408.[14] Cal. Unemp. Ins. Code § 3300 et seq.[15] To complicate things a bit more, employers in San Francisco with 20 or more employees must supplement employees’ PFL by the amount needed to true up the employee to 100% of his or her regular salary.  See San Francisco Paid Parental Leave Ordinance, San Francisco Police Code 33H (2016).[16] Cal. Unemp. Ins. Code § 2601 et seq.

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Navigating the Seas of Federal, State, and Local Leave of Absence Laws

Navigating the Seas of Federal, State, and Local Leave of Absence Laws

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Paid Time Off - Post Size

FMLA, CFRA, NPLA, ADA, FEHA, NYPFL, SFPPLO.  The alphabet soup of leave laws with which employers must comply is enough to make the heads of even the most seaso

Leaves of Absence

Paid Sick Leave

What began as a hashtag trending on Twitter may spur major change in the legislative arena in California. #MeToo not only brought global attention to the magnitude of sexual harassment and assault, but also sparked a much-needed conversation about how to combat the problem outside of cyberspace. In the workplace, issues regarding sexual harassment, sex discrimination, and retaliation have moved to the forefront of the California Legislature, as it attempts to address perceived shortcomings posed by mandatory arbitration. One bill getting particular attention is Assembly Bill 3080, introduced by Assemblywoman Lorena Gonzalez Fletcher. It specifically aims to ban employers from requiring workers to agree to arbitration as a condition of employment. Although the bill has passed the Assembly, challenges regarding preemption and significant employer opposition may ultimately send the Legislature back to the drawing board. In this article we provide an analysis of the history of #MeToo, the aim of the pending legislation, and the conflicts with federal and case law that may well derail the legislation.BackgroundOn October 15, 2017, American actress Alyssa Milano urged women to write “Me Too” as a social media status if they had ever been victims of sexual assault. The call went viral on Twitter and elsewhere, as over 1.7 million tweets responded from 85 countries. On Facebook, the hashtag was used more than 12 million times. The phrase was originally coined in 2006 by Tarana Burke, mainly as a movement to help survivors of sexual assault find healing. The social media hashtag has since expanded the movement, encompassing not only healing, but awareness and a call for social responsibility through change. The movement has spurred conversations that touch all sectors of life, identifying sexual assault and harassment as a rampant problem that needs addressing. One such area is in employment, as numerous women shared stories about workplace harassment and subsequent blacklisting, particularly in the wake of the Harvey Weinstein sexual assault allegations. As the conversation has expanded, the California Legislature has taken steps to address the problem, although its solutions will be difficult to implement.Major LegislationProposed California legislation involves a broad range of approaches to mandatory arbitration agreements and sexual harassment to further the goals of #MeToo advocates. These range from an attempt to extend the current one-year statute of limitation on sexual harassment and discrimination to three years (SB 1300), to a proposal making it illegal for sexual harassers to condition a settlement on confidentiality (SB 820). The main one, however, is Assemblywoman Fletcher’s AB 3080. The purpose of the act is both “to ensure that individuals are not retaliated against” for refusing to consent to arbitration agreements with their employers and to preclude agreements making claims or settlements of sexual harassment confidential. In essence, this bill aims to limit what an employer can require as a condition of employment by making it illegal to prohibit potential and current employees from disclosing any instance of sexual harassment they may “suffer, witness or discover” in the workplace. In addition, regarding mandatory arbitration, Section 4 of the bill provides:A person shall not, as a condition of employment…require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act…including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency… or any court or other governmental entity of any alleged violation.In describing the problem, Assemblywoman Fletcher writes, “[r]equiring workers to waive their basic rights as a condition of employment is fundamentally unfair. All contracts must be voluntary, not the result of coercion, and denying a worker a livelihood if they do not sign is anything but voluntary.” The counterargument points to the high costs of litigation for both parties if arbitration is discouraged, emphasizing the studies which support the notion that “access to civil courts is not a realistic option for low wage employees.” Opponents of this bill include the California Chamber of Commerce, the California Manufacturers and Technology Association, and the Civil Justice Association of California.ConflictNotable obstacles face AB 3080.  Judicial approval of arbitration, federal preemption, and past failed attempts at similar restrictions are all factors stacked against the bill.First, federal preemption will pose a stiff challenge to this bill. Proponents of AB 3080 recognize that the Federal Arbitration Act (FAA) as currently interpreted prevents state legislatures from discouraging or discriminating against arbitration either directly or indirectly. The proponents argue against preemption by the FAA, however, by narrowly reading their proposed bill and its impact. The argument goes:[T]here is a reasoned case to be made that the author and sponsor of this bill have carefully crafted a statute that responds to preemption doctrine by taking the U.S. Supreme Court’s admonition seriously: that consent is the touchstone of arbitration agreements. [Citation omitted.] In this way, this bill would ensure employees may choose to waive their rights in order to keep a job, but they are never forced to.Thus, the reasoning remains that the proposed legislation does not seek to outlaw arbitrations, but instead, it simply aims to ensure that all arbitrations are entered into voluntarily. Putting an end to what proponents characterize as “forced arbitrations” is the goal, with the reasoning that making something a condition of employment is a type of coercion that renders the decision involuntary. The reasoning seems weak at best, as it still seems to ignore the “obvious preemption elephant” in the room. It probably rests on a hope that by the time the bill, if enacted, reaches the U.S. Supreme Court, the court will have new justices who will reconsider – if not overturn – the current decisions.On October 11, 2015, Governor Brown rejected a similar bill, AB 465, which purported to outlaw the use of mandatory arbitration agreements as a condition of employment. Governor Brown explained that he was returning the bill without his signature because it was a “far-reaching step,” and it would likely be struck down as a violation of the FAA. He also pointed to the protections provided to ensure fair arbitrations and called on lawmakers to make specified changes to combat any abuses, rather than a “blanket prohibition.” This leaves substantial uncertainty as to whether Governor Brown will sign AB 3080. Will it suffer the same fate as its predecessors in the courts, or will the new climate of #MeToo pave the way for its acceptance?  Conclusion#MeToo has shown us that social media can have effects that reach far beyond the computer screen. Women in positions of power have mobilized to argue for laws they believe reflect the core goals of the movement, one of which is to extinguish sexual harassment in the workplace. Whether a limitation on required arbitration agreements effectively achieves this goal is up for debate. On the one hand, the proponents of AB 3080 argue that the bill would outlaw an unfair process cloaked in secrecy by giving employees the flexibility to choose their forums. On the other hand, its opponents argue that AB 3080 is an impermissible hindrance to a mutually effective and fairly structured process. Regardless of the position one takes, however, one thing is clear: This conversation is far from over.

From Social Media to Social Change: Will #MeToo Alter California Arbitration Law?

Of Counsel

Lloyd W. Aubry, Jr. is a member of our Employment and Labor Group. Lloyd’s practice encompasses all aspects of employment and labor law, including litigation and counseling.

Lloyd Aubry

Lloyd Aubry’s practice encompasses all aspects of employment and labor law, including litigation and counseling. He represents public and private clients in a variety of matters relating to wage and hour law, employment discrimination, wrongful discharge, safety and health issues, and National Labor Relations Act (NLRA) issues. Mr. Aubry represents clients before administrative agencies and in state and federal court. A significant part of his practice involves expert testimony and consulting on issues relating to the Department of Industrial Relations. In this capacity, he has served for both employers and employees.

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From Social Media to Social Change: Will #MeToo Alter California Arbitration Law?

From Social Media to Social Change: Will #MeToo Alter California Arbitration Law? 

elcblog-june-2018

What began as a hashtag trending on Twitter may spur major change in the legislative arena in California. #MeToo not only brought global attention to the magnit