Federal Contractors to See Potential Wage Increase

Minimum wage has been a hot topic over the last year, and continues to be so into 2014. The Fair Minimum Wage Act now sits in front of both the House of Representatives and the Senate. The Act aims to raise the federal minimum wage from $7.25 per hour to $10.10 per hour in three stages over the next several years. The Act would further raise the minimum wage for tipped employees and ensure that, in future years, the minimum wage would adjust annually for inflation, as it does in many states.

While the majority of American minimum wage employees will have to wait for the bill to pass, another group of employees in the United States may see pay increases sooner. In his State of the Union address, President Obama announced his plan to sign an executive order, which will raise the minimum wage for federal contract employees to $10.10 per hour. Because federal contracts can be so complex, the new wage requirement will not affect anyone who is currently under contract, but will affect all of those who sign new future contracts or renewed contracts.

The President stated the order could be expected in a few weeks, and the White House claimed it believes that “[b]oosting wages will lower turnover and increase morale, and will lead to higher productivity overall.” Many lower wage-earning federal contract employees work on military bases as dishwashers, janitors, food servers, and launderers. Obama specifically voiced his belief that the people who help take care of United States troops should not have to live below the poverty level.

Opposition for the Wage Hike

Of course, people quickly spoke up against the President’s plan, citing concerns or simply downplaying the bill. First, some industry groups took the order as a slight against federal contractors, stating the President singled out contractors for the increase, which may insinuate that contractors do not already pay a fair wage.

Industry groups cited the Service Contract Act, which already requires employees under certain types of contracts to be paid much higher than $10.10 per hour.

Other politicians pointed out that the scope of the executive order would be much smaller than it sounds, stating that only approximately 10 percent of the 2.2 million federal contract employees currently make less than $10.10 per hour. Those are the only employees who would be covered under the order.

However, the Obama administration pointed out that the increase will still apply to 200,000 to 300,000 Americans, and will increase their standard of living. That is better than nothing, some politicians maintain. Others see this order as a push to pass the Fair Minimum Wage Act through Congress. Obama also commented, in his State of the Union address, that he would continue to encourage that bill, and for Congress to stand up for all workers in the United States by increasing the federal minimum wage.

Though the federal minimum wage is currently still $7.25 per hour, the minimum wage in California is $8.00 per hour for 2013. If you have any questions regarding minimum wage or other wage and hour issues, call the Pershing Square Law Firm today for help.

Milestone GINA Case Warns Employers about Application Questions

Congress enacted the Genetic Information Nondiscrimination Act (GINA) in 2008. Title II of GINA specifically prohibits employers from discriminating against or harassing job applicants or current employees based on their genetic information. To prevent employers from unlawfully using genetic information in employment decisions, companies may not request or require applicants or employees to provide such information.

Under the law, genetic information includes the following:

• Information regarding a person’s genetic tests;
• Genetic information showing an increased risk for a disorder, disease, or other medical condition;
• Information showing an individual requested or received any type of genetic services;
• Genetic information of a pregnant woman or fetus;
• Genetic tests of family members or family medical history.

GINA prevents employers from requesting family medical history and tests because such information may show that the individual may have a predisposition for certain diseases or disorders.

Landmark Case for EEOC

Issues under GINA have been litigated by the Equal Employment Opportunity Commission (EEOC) three times, with only one case alleging an employer engaged in systemic discrimination. The former case, EEOC v. Founders Pavilion Inc., recently settled, and the EEOC calls the settlement a major milestone in employment law.

As part of its hiring process, Founders Pavilion Inc. conducted pre-employment medical exams, during which it unlawfully requested family medical history in violation of GINA. The EEOC case further alleged violations of the Americans with Disabilities Act (ADA) and Title VII, claiming that based on the medical exams, the company refused to hire two women for perceived disabilities, refused to hire three women because of pregnancy, and fired a current employee after refusing to accommodate her disability.

Ten months after the complaint, the EEOC and Founders Pavilion came to a settlement agreement totaling $370,000. The five employees who suffered unlawful discrimination under the ADA and Title VII will split $259,600, while 138 individuals who were unlawfully asked to provide family medical history or other genetic information will share $110,400. The company will furthermore have to post notices of the lawsuit in the workplace, adjust its anti-discrimination policy and notify and train employees on the changes, and periodically report to the EEOC for five years.

Reminder for All Employers

Though GINA claims have been few and far between, the Founders Pavilion case reminds employers that the EEOC will take allegations of GINA violations very seriously. Furthermore, the case is another example of how GINA violations often go hand-in-hand with violations of the ADA, Title VII, or other employment laws. The consequences of such violations may be serious for employers.

Asking questions regarding family medical history on job applications or during job-related medical exams is against the law. There are only six narrow exceptions to this rule, which may be found here. Otherwise, companies should make sure their application and medical exam policies are in compliance with the law.

If you believe that you have suffered unlawful discrimination based on your genetic information or any other protected reason, you should contact the Pershing Square Law Firm as soon as possible to discuss a possible case.

Can My California Employer Check My Credit?

In previous years, it was common for employers throughout the United States to check a job applicant’s credit to help make employment decisions. If applicants had poor credit, the potential employer would often see that as a sign of irresponsibility and decide not to hire that person. However, in recent years, with the economic downturn, more Americans than ever have credit problems. Unemployment, mortgage foreclosures, and other financial struggles have made it difficult for people to pay all of their bills and have caused a large number of credit scores to plummet. Those lower credit scores have made it difficult for some Americans to secure employment, which only furthers their financial difficulties.

Recent reports, however, have indicated that a low credit score has little to no reflection on whether an applicant has the ability to adequately perform job duties. For that reason, in December of 2013, Senator Elizabeth Warren (D-Mass.) introduced proposed federal legislation, the Equal Employment for All Act, which would amend the Fair Credit Reporting Act (FRCA) to prohibit employers across the United States from using credit information to make employment decisions, all in order to protect applicants and employees from unjust discrimination.

California Credit Check Laws

While the federal legislation is still pending, California job applicants and employees are already protected from discrimination based on credit checks. California is one of ten states that have enacted such legislative protections for employees as of January 1st, 2014. These states include California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington. Additionally, 35 other states have pending legislation related to employer credit checks.

Generally, most California public and private employers may not use credit information as the basis for any adverse employment action, such as hiring, demotion, rejection for promotion, or termination. An employer may not otherwise discriminate against or harass an employer based on credit information.

Exceptions to the Law

There are certain exceptions in which an employer may use credit information as the basis of an employment decision. Such exceptions are necessary in fields of employment that involve the handling of money or certain financial responsibilities. Some exceptions include applicants for:

·         A managerial position who qualifies for the executive exemption from wage and hour laws;

·         A position that allows the employee to transfer company money, enter into financial contracts for the company, or be a signatory on the company’s credit cards or bank accounts;

·         A position that gives the employee access to large amounts of credit or bank applications or other personal information of customers;

·         A position that gives the employee access to trade secrets or other confidential company information;

·         A position in which the employee handles large amounts of client money.

It makes sense that credit checks would be allowed for such positions that require a large amount of trust or financial responsibility. However, for any other type of position, California employers should never use credit information to make decisions or to discriminate against an applicant or employee.

If you have any concerns about employer credit checks, or if you believe that a company has violated employment laws, contact the office of Pershing Square Law Firm today for assistance in protecting your rights.

California Supreme Court Asked to Review “Suitable Seating” Law

California labor laws include a “suitable seating” provision, which has recently come under debate in the state courts.  Two different labor laws include suitable seating provisions, one law applies to the mercantile industry and the other applies to the professional, technical, clerical, mechanical, and similar occupations.  In both labor laws, the suitable seating provisions are identical and read as follows:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

Recent Suitable Seating Cases

Two proposed class action suits regarding suitable seating violations were dismissed and then appealed in 2013.  The first lawsuit was brought by a former cashier at CVS Pharmacy, who spent 90 percent of her shifts behind the cash register and claimed the company violated the law when it refused to allow her to sit down during this time.  The second lawsuit was filed by four former tellers at JPMorgan Chase Bank, and claimed the corporation unlawfully refused to let tellers sit down.

The trial court refused to allow the class actions suits to proceed, stating that a company may use business judgment in deciding whether employees should sit down based on the “entire range of an employee’s duties.”  Because the companies stated the employees did not spend 100% of their time behind the register, the lower court found that standing may be required to allow them to move about the store.  However, the employees disagree, stating that while they are behind the register, they should be allowed to sit down.

On appeal, the Court of Appeals for the Ninth Circuit had three main questions:

1. Does “nature of the work” refer to the full range of an employee’s duties or to individual tasks?
2. Should courts consider the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?
3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute 'suitable seats' to show the employer has violated Section 14(A)?

Because this decision could potentially affect a large number of companies throughout California and could possibly result in tens of millions of dollars in penalties, the Court of Appeals requested on January 2, 2014 that the California Supreme Court review the questions and decide the answers.  The individual cases will be put on hold until the Supreme Court makes a decision, and we will be keeping you posted on those decisions.

If you have any concerns about your employer violating state or federal labor laws, you should always contact the experienced employment attorneys at Pershing Square Law Firm for assistance today.

Hot Employment Issues Going into 2014

Many employment cases involve groups of employees coming together to hold their employer accountable for widespread wrongdoing.  Lawsuits that involve large groups of plaintiffs like this are called class actions.  Class action employment cases used to often involve numerous employees who claimed they suffered the same type of discrimination.  However, the Supreme Court recently made it more difficult to qualify as a class in its decision in Wal-Mart v. Dukes.  In that case, 1.6 million female employees of the retail giant claimed they had suffered sex discrimination in the company’s promotion and pay raise practices.  The Supreme Court decided that the women did not have common enough experiences to constitute a class.  As a result of this decision, filing class action discrimination cases will now require prohibitive amount of discovery and other work for the plaintiffs.

Since the decision in 2011, employment law experts expect a drastic decline in the number of class action discrimination lawsuits.  However, this does not mean that employment cases will decline overall, as other hot employment issues are popping up in cases on a more regular basis as we go in to 2014.

Wage and Hour Cases

Wage and hour lawsuits have been on the rise, with the number of cases increasing 10 percent from 2012 to 2013.  Experts expect that number to keep rising, especially in light of the Wal-Mart v. Dukes decision.  Some common bases for wage and hour cases include:

·         Misclassification of employees vs. independent contractors

·         Non-payment of interns

·         Failing to pay full overtime wages

·         Failing to pay for time spent preparing for shifts or cleaning up after shifts

·         Not paying workers on time

·         Not paying workers their final paychecks if a company goes out of business

California is one of the states with the most worker-friendly wage and hour laws, along with New York, New Jersey, Pennsylvania, Massachusetts, and Florida.  Therefore, California is especially expected to see an increase in this type of case in 2014.

Social Media Cases

The use of social media in the workplace has also become a hot-button employment issue.  New laws prohibiting employers from demanding access to employees’ personal social media profiles will be the focus of new cases targeting non-compliant companies.  Furthermore, many cases will likely involve wrongful termination in violation of the employee’s First Amendment rights to free speech, after an employer fires someone for posting certain material on social media sites.

Whistleblowing

The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) provides several protections, incentives, and financial rewards for whistleblowers who report violations regarding insider trading, corporate disclosure, accounting fraud, dealer-broker violations, and more.  Expect to see several whistleblowing claims arising in the New Year.  These cases will mostly involve claims of unlawful retaliation against protected whistleblowers.

In short, employment cases will not decrease simply because of the difficulties facing potential class action discrimination suits.  Employees still have plenty of reasons to file claims against their employers to receive the compensations they deserve.  If you are facing any employment issue, do not hesitate to contact the Pershing Square Law Firm to discuss a potential case.

New California Employment Laws for 2014

As we enter 2014, it is important to be aware of the new and amended employment laws that go into effect in the new year.  As an employee, you should always stay up to date on your employment rights and protections so you will be able to recognize violations on the part of your employer.  The following are some of the new employment law developments for 2014.

Minimum wage:  The minimum wage in California will go from $8.00 per hour to $9.00 per hour in 2014.  The minimum wage will increase again to $10.00 in 2016.

Sexual harassment clarification:  California’s laws against sexual harassment will be amended to clarify that offending behavior need not be motivated by actual sexual desire to constitute harassment.

Whistleblowing protection:  The whistleblowing laws currently prohibit retaliation against an employee who reports violations of state or federal law.  The amended law will also go further to protect employees who reports violations of local rules and regulations.

Military protections:  Anti-discrimination laws will now include military and veteran status to the list of protected categories.  This means that employers may not discriminate, harass, or retaliate against an employee based on their current or former military action.

Immigration protections:  The law prohibits employer from retaliating against an employee by threatening to report their immigration status to authorities because the employee complained of or reported employment law violations.  State agencies will be able to revoke business licenses or file charges of criminal extortion against employers that violate this law.

Overtime for domestic employees:  The wage and hour requirements of the Fair Labor Standards Act usually do not apply to domestic workers.  The new law, the Domestic Worker Bill of Rights, requires overtime compliance for certain domestic workers that qualify as “personal attendants.”  Employers of domestic workers should examine the definitions in the law to see if it applies to them and their employees.

Heat illness recovery time:  Employers may not require employees to perform work during recovery time for heat illness or exhaustion.  The penalties for violating this law will be the same as for failing to provide required meal or break times.

Leave for crime victims:  Employers will be required to provide job-protected time off work for victims of certain crimes to attend court proceedings that involve victims’ rights.  Additionally, the law that allows leave time for victims of domestic violence or sexual assault will be expanded to protect victims of stalking, as well.

Paid family time:  The Paid Family Leave laws will be expanded to provide wage-replacement benefits for employees who take qualified leave time to care for a seriously ill or injured sibling, grandchild, grandparent, or parent-in-law.

Criminal background checks:  State and local agencies will be prohibited from requiring information regarding criminal convictions before determining that they meet minimum qualifications for the position, unless certain exceptions apply.

Emergency duty leave:  Emergency rescue personnel and reserve peace officers will be entitled to time off work for necessary training.  This law previously only applied to volunteer firefighters and law enforcement.

If you have any questions or concerns regarding new employment laws for 2014, do not hesitate to contact Pershing Square Law Firm as soon as possible for help.

UPS Changes Employees’ Spouses’ Healthcare Coverage Because of Affordable Care Act

Employees at United Parcel Service (UPS) will not be able to receive healthcare benefits for working spouses who are eligible for coverage through their own employers, according to recent reports. UPS stated that it made this change because of rising costs caused by the Affordable Care Act.  This change is an example of ways that employers might attempt to lower costs under the new healthcare law.  However, employees should be aware of changes that might subject them to harassment, retaliation, or discrimination.

New Employee Benefit Policy

A spokesman for UPS stated that the company’s new policy is part of an effort to keep employees’ healthcare premiums from rising above current levels.  Importantly, the change would only apply to working spouses who are eligible for healthcare through their own employers.  UPS stated that the new policy was based on the fact that the Affordable Care Act requires all employers to provide health coverage to their employees, including working spouses of UPS employees.  When the change goes into effect on January 1, an estimated 15,000 to 33,000 spouses will be dropped from coverage for medical benefits, though they will still be eligible for dental and vision benefits.

Legal Ramifications?

However, according to a study done by two law professors at the University of Illinois, the Affordable Care Act might cause employers to make changes that could be unfair to employees or could even amount to harassment or discrimination.  One of the possible changes that has received the most press is that employers might slash employees’ hours so that they are not full-time employees who must be covered.

Another potential employer action might lead to discrimination against some employees.  Employers might start asking employees or prospective employees about their plans for healthcare coverage.  Employees who will receive healthcare coverage through a spouse might receive preference over employees who intend to seek coverage through their employer.

Another possibility is that employers may retaliate against employees who subject them to fines under the Affordable Care Act.  Employers will have to pay fines under the healthcare law if they do not provide coverage to employees or if they provide inadequate coverage that causes employees to purchase subsidized healthcare through the state.  Therefore, if an employee purchases healthcare through the state because an employer’s healthcare coverage is inadequate, that employer may face fines under the healthcare law and might retaliate against that employee.

The Bottom Line

The new healthcare law may cause employers to change their practices in order to keep costs down.  However, employees should not have to face harassment, retaliation, or discrimination based on the new healthcare law.  It is possible that unfair practices could lead to an employment lawsuit or other legal measures.  If you would like to learn more about this issue, feel free to contact an employment lawyer for information or advice.