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.

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.

Recent News Stories Reveal Sexual Assault of California Agricultural Workers

Both federal and state laws prohibit sex discrimination and harassment in the workplace by way of Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (FEHA).  Under unlawful sexual harassment, the laws include unwelcome sexual propositions or advances, offensive statements or gestures, leering looks, derogatory comments, statements about a person’s appearance or body, and physical conduct, such as unwanted touching, assault, or cornering or blocking movements.

If an employee has been sexually harassed, he or she would normally be advised to oppose the behavior and report the incident to a supervisor or other appropriate superior.  Many companies have human resources departments or other channels through which to file a report, which may be set out in employer policies or employee handbooks.  No one should be expected to tolerate sexual harassment or a hostile work environment and no one should be afraid to report such conditions.

Sexual Harassment of Farm Workers

Unfortunately, not all workers feel able to report offensive and illegal behavior in the workplace.  National Public Radio recently published a two-part series on sexual assault of female farm workers.  Each part focused on a female who experienced sexual assault by a supervisor while working in the fields of California.  Both of these women were brave enough to eventually report the wrongdoing, however the story reveals there are many, many more women whose harassment and assault at work goes unreported.

Recently, advocates from the Equal Employment Opportunity Commission (EEOC) have been using advertisements on rural radio stations to encourage women who have suffered sexual harassment or assault at work to feel safe and come forward to report the unlawful behavior.  However, there are several reasons why female farm workers are afraid to do so.  These reasons include:

·         Many farm workers are undocumented are fear getting deported if they come forward and lodge a complaint with a government or law enforcement agency.

·         They fear they will lose their jobs.  Many farms are run by a single supervisor who has complete control over who gets hired, promoted, paid, and fired.  Since that supervisor is often the harasser or assaulter, the victims fear not being able to feed their families or pay their bills if they speak.

·         They fear they will not find another job.  As NPR reported, word travels quickly among farm supervisors in California.  If other farm supervisors or workers hear that a female worker has complained of or reported sexual mistreatment, no one else in the industry will hire her.

EEOC officials and legal aid attorneys in the rural areas state that the more female agricultural workers come forward, the more consequences the offending supervisors may have to face.  Those supervisors who are in hot water with the law will then serve as a warning to others in the industry that there may be both criminal and civil consequences for continued workplace harassment and assaults.

As previously mentioned, no one should have to endure offensive treatment on the job.  If you believe you have been the victim of sexual harassment or any other type of unlawful behavior at work, contact Pershing Square Law Firm for assistance as soon as possible.

California Law Protects Employees’ Social Media Privacy

In the past, employers commonly used social media to get a glimpse into the behaviors of their applicants and monitor any possible employee misconduct.  In recent years, however, employers have had a much more difficult time accessing information about their employees online as social media users began utilizing strict privacy settings on their profiles. 

To get around these privacy settings, many employers were requesting—or demanding—usernames and passwords for their employees’ social media profiles or accounts in order to access their personal information.  State legislators across the United States have been recognizing the need to protect employees against this invasion of online privacy.  The large majority of states have pending legislation related to online privacy and the Password Protection Act of 2013 has been introduced to the United States House of Representatives on the federal level.  California became one of the first states to pass such a law in 2012, and Section 980 of the Labor Code went into effect on January 1, 2013.

How Section 980 Affects Employers

California law now prohibits employers from demanding usernames or passwords for personal social media accounts from applicants or employees.  The law states that “social media” is defined as any electronic service or account, or electronic content.  This definition includes, but is not limited to:

●     Videos

●     Still photographs

●     Blogs

●     Video blogs

●     Podcasts

●     Instant messages

●     Text messages

●     Email messages

●     Online services or accounts

●     Internet profiles on sites such as Facebook, Twitter, LinkedIn, Pinterest, Tumblr, or Instagram

In addition to passwords and usernames, the law also protects any information related to an applicant or employee’s personal social media presence, such as the content of blogs or status messages.  Furthermore, under California law, employers may not demand that an applicant or employee access their own social media profile or site in the presence of the employer or a supervisor so that the employer may view the content of the personal social media account.  Finally, it is unlawful for an employer to discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an applicant or employee for refusing to produce social media usernames and passwords or to divulge any personal social media content.

When an Employer may Access Social Media

There are two major exceptions to the law, however, that allow employers to access private employee social media accounts under limited circumstances.  First, an employer may request that an employee divulge social media information if it is relevant to an investigation of alleged violations of law or other employee misconduct.  In this case, the information obtained may only be used for purposes of the investigation and nothing more.  Second, employers retain the right to request usernames, passwords, or other information necessary to access any electronic devices issued by the employer, such as computers, PDAs, or company email accounts.

As of now, Section 980 of the Labor Code only applies to private employers, however A.B. 25 is currently making its way through the state legislature and proposes the law also apply to public employers in California.  If you believe your employer has unlawfully requested personal social media information or retaliated against you, you should contact Pershing Square Law Firm to help protect your rights.