E-Blasts

In California, employers are faced with an increasingly complex rulebook for what they may and may not ask about either a current or prospective employee’s criminal history. Effective July 1, 2017, employers may not consider any non-felony misdemeanor conviction related to marijuana possession that is more than two years old in any employment decision. This prohibition not only includes hiring and firing of an employee, but advancement or promotion opportunities as well.

Recently, UPS settled a class action suit filed in 2009 by the Equal Employment Opportunity Commission ("EEOC") for $1,718,500.00.  The EEOC’s lawsuit claimed that UPS’ policy of only granting employees up to 12 months of medical leave regardless of the circumstances violated the Americans with Disabilities Act (“ADA”). According to the EEOC’s complaint, UPS’ adherence to its inflexible 12-month leave policy resulted in the company not providing reasonable accommodations to employees and automatically terminating their employment after the 12-month leave had expired.

The EEOC argued that this policy was unlawful because the interactive process that employers are required to engage in with employees requesting accommodation is supposed to be tailored to each individual case, and what is reasonable is determined on a case-by-case basis. Thus, a strict “cap” on leave meant that UPS was not engaging in a good faith interactive process to determine whether or not some amount of additional leave would have enabled employees to go back to work for the company with or without minor restrictions that could have been accommodated. 

In addition to the settlement payout, UPS has also agreed to a number of injunctive terms which control how it must handle accommodation issues moving forward. Specifically, by the terms of the settlement, UPS is prohibited from discriminating on the basis of disability against nonunion workers on medical leave, including those on disability who have asked for an accommodation. UPS also agreed that it may not retaliate against any employee who “has opposed any unlawful practice under the ADA, requested a reasonable accommodation, or filed a discrimination charge under the statute.”   While these terms simply identify conduct that would have been unlawful in any event, their inclusion makes it easier for the EEOC to pursue relief on behalf of affected employees in the future.

The Fair Employment and Housing Council (“FEHC”) recently voted to submit an emergency rule change to the Office of Administrative Law (“OAL”) to align their regulations with Cal/OSHA and the Department of Industrial Relations (“DIR”) regarding signage for single-user non-flush toilets. As you may know, Assembly Bill 1732, effective March 1, 2017, requires that all single-user restroom facilities be identified as “all-gender” restrooms. 

Following the AB 1732’s passage, there was uncertainty in the agricultural industry as to what was required in the field, as AB 1732 appeared to directly conflict with a Cal/OSHA regulation, which requires separate toilets in the field for each gender. On March 20, 2017, the DIR released a FAQ that aligned with Cal/OSHA’s requirements and clarified that AB 1732 only applies to single-user restrooms with “flush” toilets, meaning that non-flush toilets (i.e. “porta-potties”) which are commonly used in the field are not subject to AB 1732’s “all-gender” decal requirement.

The FEHC’s proposed regulation to OAL seeks to eliminate the apparent conflict with both Cal/OSHA and the DIR’s guidance. FEHC’s current law states that single-user facilities shall use gender-neutral signage. The proposed regulation seeks to add that the FEHC’s current law does not apply to certain industries with single-user, non-water “disposal facilities” (i.e. “porta-potties”), including but not limited to, agricultural operations and construction. Once submitted, the proposed rule will undergo a five day public comment and OAL review. If approved, the rule will become effective for 180 days to give the agency time to make the regulation permanent through the normal rule making process.

COUNSEL TO MANAGEMENT

This proposed emergency rule basically codifies the DIR’s FAQ guidance and brings all of the rules from all of the agencies into sync. Nonetheless, it is a welcome change to the rules so that there is no confusion as to employers’ requirements regarding single-use facilities. We still would like to remind you that agricultural employers with single-user bathrooms with flush toilets in their facilities are subject to AB 1732 and must ensure that those single-user bathrooms are properly identified as “all-gender.”  Additionally, we continue to recommend that employers allow employees to use whichever restroom corresponds with the gender with which they identify. If you have any questions regarding bathroom-related requirements, please contact the experts at The Saqui Law Group.

Earlier this month, the Equal Employment Opportunity Commission (“EEOC”) and a Florida employer reached a $100,000.00 settlement stemming from a discrimination claim by a pregnant job applicant who alleged her offer was pulled because of her pregnancy. The applicant, Nicole Purcell, contended that the employer formally offered her a job in March 2015. After receiving the job offer, Purcell called the employer’s office and asked to speak with a department head.  She told the department head she was pregnant, and asked about the employer’s maternity policy. Less than half an hour later, the employer pulled Purcell’s offer, explaining that they had a very urgent need to have somebody in the position long term.

The EEOC said that the employer violated the law by assuming that Purcell could not perform the duties asked of her. The employer was required under the law to assume that a pregnant employee could perform the job until proven otherwise, or until the employee asks for an accommodation due to her pregnancy.

In a recent decision, the Ninth Circuit refused to enforce an employer’s arbitration agreement, denying the employer’s request to force its former employee to arbitrate her claims against it. The plaintiff filed a lawsuit in the district court alleging that her employer, The Finish Line, violated the law by failing to provide reasonable accommodations of her pregnancy-related disabilities, and terminating her for requesting and taking pregnancy leave. The Finish Line asked the district court to order the parties to arbitrate the case pursuant to the arbitration agreement the plaintiff signed.   

Despite the existence of a signed arbitration agreement, the district court denied The Finish Line’s request.  The Employer appealed the decision to the Ninth Circuit, which upheld the district court’s order refusing to compel arbitration.

Earlier this week in Gamble v. JP Morgan Chase & Company, et al., the 6th Circuit upheld a lower court decision throwing out the claim of a stockbroker against his employer for disability and age discrimination.  Plaintiff argued that his employer violated the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act (“ADEA”) because, after he suffered a heart attack, his employer failed to accommodate his disability and terminated him following his disability leave. Under the ADEA and ADA, if a plaintiff does not present any direct evidence of discrimination, he or she is required to show, among other things, that he or she is “otherwise qualified for the position.” To make this decision, courts look to whether the employee is able to perform the “essential functions” of the job. Here, Plaintiff did not present any direct evidence of age or disability related discrimination and was completely disabled, unreleased to work by his doctor, and was unable to regularly attend his job. Thus, because the Court concluded that regular attendance is an “essential function” of being a stockbroker, as it is for most jobs, it determined that the Plaintiff was not “otherwise qualified” for his position and denied his claim.

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