AGENCY UPDATES

Fair Employment and Housing Council Publishes Amendments to the California Family Rights Act Regulations

In early March, the Fair Employment and Housing Council approved amendments to the California Family Rights Act (CFRA) regulations.  The amendments take effect on July 1, 2015.  Some key changes are discussed below. 

The regulations now provide additional guidance on several definitions, including adding significant language defining joint employers, as well as what it means to be an eligible employee under the law.  Several of the changes were intended to better align California’s law with the federal Family Medical Leave Act regulations.  That being said, key differences between the laws remain, including California’s stricter stance on what employers can ask regarding employees’ medical conditions and California’s protections for pregnant employees. 

The amended regulations also change mandatory posting requirements, and information that must be included on certification forms given to health care providers.  The Council also approved a stricter reinstatement guarantee, making it easier for employees to challenge layoffs and any restructuring that may have occurred while they were on leave. 

The amended regulations can be found here:  http://www.dfeh.ca.gov/res/docs/FEHC/Final%20Text%20%281%29.pdf

Also, keep checking the Council’s website, as we expect updated forms before May 1, 2015:  http://www.dfeh.ca.gov/FEHCouncil.htm

California OSHA Amends State Heat Illness Prevention Regulations

In February 2015, California’s Occupational Safety and Health Standards Board amended the state’S Heat Illness Prevention regulations.  The regulations will go into effect once approved by the Office of Administrative Law.  The Board has asked for the regulations to become effective on May 1, 2015.  The heat illness regulations apply to all outdoor places of employment. 

With summer fast approaching, employers should update their heat illness prevention plans and train their employees on compliance with these amendments. 

Shade

The amended regulations require shade be provided when the temperature exceeds 80 degrees, and when temperatures are below 80 degrees, employers must provide shade or timely access to shade upon an employee’s request.  Shade shall be located as close as practicable to the areas where the employees are working.  The amount of shade to be provided must be large enough to accommodate the number of employees on a recovery or rest period. 

Potable Water

Employees must have access to potable drinking water, which must be fresh, pure, suitably cool, and provided to employees free of charge.  The water must be located as close as practicable to the areas where employees are working. 

Preventative Cool-Down Periods

Employees must be allowed and encouraged to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating.  Access to shade for this purpose must be permitted at all times.  An individual who takes a preventative cool-down rest must be monitored and asked if he or she is experiencing symptoms of heat illness, and must be encouraged to remain in the shade, and not ordered back to work for a minimum of 5 minutes and until all signs or symptoms of heat illness have abated. 

If an employee exhibits signs or reports symptoms of heat illness while taking the preventative cool-down period, the employer must provide first aid and/or call for emergency medical attention, if necessary.  

Emergency Response Procedures

The amended regulations require employers to implement effective emergency response procedures, including by ensuring effective communication is maintained.  Employers must also establish procedures for responding to signs and symptoms of possible heat illness, and if necessary, contacting emergency medical services or transporting the employee to a medical provider, and ensuring that clear and precise directions can and will be provided to the emergency responder. 

Acclimatization

A supervisor or designee must closely observe all employees during a “heat wave,” which is defined as a day predicted to be over 80 degrees and at least 10 degrees higher than average.  The regulations further provide that any new employee assigned to a high heat area must be closely observed by a supervisor or designee for the first 14 days of the employee’s employment. 

Training

While compliance with these amendments requires significant training, the regulations also specify that effective training must be provided to all employees potentially exposed to heat illness.  The training must at a minimum cover: (A) the environmental and personal risk factors associated with heat illness; (B) the employer’s procedure for complying with the requirements of these regulations, including the responsibility to provide water, shade, cool-down, and access to first aid; (C) the importance of drinking water; (D) the importance and methods of acclimatizing employees during heat waves or upon just beginning a new work assignment; (E) the different types and common signs of heat illness, and appropriate first aid and/or emergency response to the different types of heat illness; (F) the importance of immediately reporting symptoms of heat illness; (G) the employer’s procedures for responding to signs or symptoms of possible heat illness; (H) the procedure for contacting emergency medical services or transporting employees to a medical provider; and (I) the procedure for ensuring clear and precise directions are given to an emergency responder. 

Supervisors must also be trained on how to implement the employer’s heat illness procedures, how to identify the signs or symptoms of possible heat illness, and how to monitor and respond to hot weather advisories.  

High-Heat Procedures

Employers in agriculture, construction, landscaping, oil and gas extraction, and transportation or delivery of agricultural products, construction materials, or other heavy materials, must also comply with the regulation’s “high-heat procedures,” which apply when the temperature reaches or exceeds 95 degrees. 

Employers under the “high-heat procedures” must ensure employees are effectively observed and monitored by either a supervisor or designee observing 20 or fewer employees, or using a mandatory buddy system, or communicating regularly with a sole employee by radio or cell phone, or “other effective means of observation.”   The employer must also designate one or more employees on each worksite as the person authorized to call for emergency medical services, or by allowing employees to call for emergency services when no designated employee is available. 

Employers must also provide pre-shift meetings to review high heat procedures and encourage everyone to drink plenty of water and if necessary, take their cool-down rest periods. 

For the agricultural industry, when temperatures reach or exceed 95 degrees, the employer must ensure employees take a minimum 10-minute preventative cool-down rest period every two hours.  This cool-down period may be provided concurrently with any meal or rest period ordinarily required. 

Heat Illness Prevention Plan

Employers must establish, implement, and maintain an effective heat illness prevention plan.  The plan must be in both English and the language understood by the majority of employees and made available at the worksite.  The Heat Illness Prevention Plan may be included as part of the employer’s illness and injury prevention program, and must include, at a minimum, procedures for the provision of water and access to shade, the high heat procedures, the emergency response procedures, and the acclimatization methods and procedures. 

The amended regulations can be found here: https://www.dir.ca.gov/oshsb/documents/Heat_illness_prevention_txtbrdconsider.pdf        

1. JUDICIAL DEVELOPMENTS

U.S. Supreme Court Identifies Burden-Shifting Framework for Pregnancy Discrimination Act Claims

The Pregnancy Discrimination Act requires employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”  42 U.S.C. § 2000e(k).  The United States Supreme Court addressed the question of how this provision applies in the context of an employer’s policy that accommodates many, but not all, employees with work limitations in light of characteristics unrelated to pregnancy. 

This case began when a pregnant employee who was restricted from lifting more than 20 pounds during her first 20 weeks of pregnancy and no lifting more than 10 pounds thereafter filed suit claiming the employer had intentionally discriminated against her on the basis of pregnancy by not accommodating her lifting restrictions.  The employer had a policy that accommodated workers who were injured on the job, lost their Department of Transportation (DOT) Licenses, or suffered from a disability within the meaning of the Americans with Disabilities Act (ADA), none of which applied to this particular employee. 

The employer prevailed on summary judgment after the trial court found the employee did not fall within the employer’s pregnancy-blind accommodation policy and therefore was not “similar in her ability or inability to work.”  The fourth circuit affirmed summary judgment, finding the employee did not fall within one of the categories enumerated, and more closely resembled that of an employee who had been injured off the job and was ineligible for accommodation under the employer’s policies.       

The Supreme Court did not decide UPS’ policies were discriminatory, but sent the case back to the lower courts for further consideration, ruling that a pregnant worker who seeks to show intentional discrimination by way of an employer’s failure to accommodate her pregnancy-related restrictions, must do so through the application of the McDonnell Douglas burden-shifting framework.  An employee alleging the employer failed to accommodate her pregnancy makes an initial prima facie case of pregnancy discrimination by showing she belongs to a protected class, she sought an accommodation, the employer did not accommodate her, and the employer accommodated others “similar in their ability or inability to work.”  The burden then shifts to the employer to state a “legitimate, nondiscriminatory” reason for denying her accommodation.  If the employer offers a legitimate, nondiscriminatory reason for denying her accommodation, the burden shifts back to the employee to show the employer’s reasons were pretextual. 

The Supreme Court went on to say that an employee may defeat summary judgment with sufficient evidence the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden.  For example, where an employer accommodates a large percentage of non-pregnant workers while not accommodating a large percentage of pregnant workers, an inference of discrimination may arise.  Or where an employer has multiple policies that accommodate non-pregnant employees with lifting restrictions, it may suggest that its reasons for failing to accommodate pregnant employees with the same lifting restrictions is not sufficiently strong. 

Notably, the Supreme Court did not explicitly decide whether a policy that provides light-duty to employees injured on the job must also provide light-duty to non-pregnant employees, leaving the issue to be determined on a case by case basis.  However, the Court also noted that statutory and regulatory changes to the ADA suggest temporary lifting restrictions, even if the result of off-the-job injuries, must be accommodated under the ADA.  Meanwhile California’s, pregnancy regulations place an affirmative duty on the employer to accommodate pregnancy-related conditions, and require employers with a policy, practice, or collective bargaining agreement to transfers employees with temporary disabilities to less strenuous positions for the duration of the disability to also transfer pregnant employees when requested. 

(Young v. United Parcel Service, Inc. (U.S. 2015) 575 U.S. __)

Failure to Prevent Harassment or Discrimination Claim Cannot Proceed Without a Viable Claim for Harassment or Discrimination

Employee massage therapist asserted claims for sexual harassment and discrimination, and failure to prevent same, against her employer based on alleged harassment from two customers.  At trial, the jury found the sexual harassment that occurred was not sufficiently severe or pervasive to result in any liability, but that the employer failed to take reasonable steps to prevent harassment under the Fair Employment and Housing Act.  The trial court denied the employer’s motion for a judgment notwithstanding the verdict on the latter claim.  The lower court did so on the employee’s theory that some evidence of sexual harassment was sufficient to support a failure to prevent claim even if the harassment didn’t rise to the level of severe and pervasive conduct.

The appellate court reversed, holding that the employee’s claim for failure to prevent harassment could not prevail without the necessary element of actionable sexual harassment.  Likewise, the court found that the jury’s finding that the company was not liable on the employee’s sex discrimination claim because there was no adverse employment action precluded the employer’s liability for failure to prevent discrimination.

(Dickson v. Burke Williams, Inc. (2015) ____ Cal.App.4th ___)

Under the FLSA, a Service Advisor is Not a “Salesman, Partsman and Mechanic Primarily Engaged in Selling or Servicing Automobiles” for Purposes of a Specific Exemption from Overtime

The ninth circuit strictly and narrowly read and applied an exemption from overtime provided in the Fair Labor Standards Act (FLSA) at 29 U.S.C. section 213(b)(10)(A), which exempts “any salesman, partsman and mechanic primarily engaged in selling or servicing automobiles.”  The employee service providers filing suit against their employer car dealership for failure to pay overtime wages under the FLSA evaluated customer repair or service needs and recommended the appropriate remedy as well as additional work that could be performed at additional cost (a company requirement for their job) and were compensated by commission only.

Parting ways with the fourth and fifth circuits, which applied the exemption to cover service providers, the ninth circuit held that service advisors do not sell or service automobiles and thereby do not come within the scope of the exemption.  The ninth circuit recognized the statutory exemption could be interpreted to include the service providers, but because it found the statute was ambiguous, the court was required to follow the Department of Labor’s long-held and narrow interpretation of the statute in its regulations as mandated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

(Navarro v. Encino Motor Cars, LLC (9th Cir. 2015) ____ F.3d ___)

California Court of Appeal Upholds Arbitration Agreement Despite Plaintiff’s Argument That it Was Unconscionable Because Her Employer Did Not Attach a Copy of the American Arbitration Association Rules

An employee sued her former employer for wrongful termination, harassment and defamation.  The employer moved to stay the litigation until the completion of arbitration.  The employee had signed an arbitration agreement upon hire.  The arbitrator found in the employer’s favor on all issues and the trial court granted the employer’s petition to confirm the award.  The employee appealed.  She argued that she did not agree to arbitration and that the agreement itself was both procedurally and substantively unconscionable.

The employee’s arguments against enforcement were based on her contentions that the agreement did not attach a copy of the American Arbitration Association (AAA) rules to the agreement, and that it improperly required her to pay her own attorneys’ fees and costs.  The trial court and the appellate court disagreed, holding that the AAA rules did not have to be attached, as long as the employer informed the employee that they could obtain a copy of the rules.  Further, the appellate court agreed with the trial court’s severing of the attorneys’ fees section from the arbitration agreement, thereby affording the employee to seek her statutory remedies under the Fair Employment and Housing Act, had she prevailed on her claims. 

(Serafin v. Balco Properties Ltd., LLC (2015) ____ Cal.App.4th ___)

Court of Appeal Finds Non-Severability Clause Immediately After Class Action Waiver Provision Controlling Requiring the Parties to Litigate All Claims In Court

An employee sued her employer bringing individual and class claims under California’s Unfair Competition Law and various Labor Code sections, and a representative claim under PAGA.  The employer moved to: (1) compel the employee to arbitrate her individual claims; (2) dismiss, sever, or stay her class claims; and (3) dismiss, sever, or stay her PAGA claim.  The employment agreement included a dispute resolution agreement (which provided the employee 30 days to opt-out), a class action waiver (followed immediately by a non-severability clause in the event the clause was found unenforceable), and a separate severability clause.  The trial court found the parties entered into a valid and binding arbitration agreement, but that the class action waiver provision which sought to eliminate the employee’s right to litigate her PAGA claim was unenforceable.  Therefore, the trial court severed the unenforceable provision and ordered the parties to arbitrate the employee’s entire complaint, including her PAGA claims, pursuant to the separate severability clause.

The appellate court agreed with the trial court and held that Iskanian v. CLS Transportation rendered the PAGA waiver within the parties agreement unenforceable, because the waiver was entered into after the dispute had arisen, even though the employer argued the waiver was “voluntarily” entered into as a result of the 30-day opt out period, but that the trial court erred by severing the unenforceable provision in light of the non-severability clause immediately after the class action waiver.  The appellate court stated that the non-severability clause clearly reflected the parties’ intent that in the event the class action waiver was found unenforceable, the provision could not be severed from the remainder of the agreement, even in light of the separate severability clause.  The court vacated the trial court’s order to compel arbitration and ordered all claims to proceed in court.

(Securitas Security Services v. Super. Ct. (2015) ___ Cal.App.4th __)

Appellate Court Finds Inclusion of American Arbitration Association Rules in Arbitration Agreement Equates to the Arbitrator Deciding the Arbitrability of Class Claims in the Absence of Ambiguities to the Contrary

An employee brought a claim on behalf of herself and others similarly situated, including causes of action based on the employer’s alleged violations of various Labor Code sections.  The employee also sought to recover civil penalties under PAGA.  The employer petitioned to compel arbitration and the employee thereafter dismissed the action  because her counsel had been unaware of the arbitration agreement.  The employee then filed a claim with the American Arbitration Association (AAA), and the employer took the position that the arbitrator could not determine the arbitrability of the class and PAGA claims and filed a claim for declaratory relief in San Diego Superior Court.  She requested that the court, not the arbitrator, decide whether class/collective claims are arbitrable.  The trial court granted the employee’s demand to arbitrate, finding that the arbitrator could decide the arbitrability of the employee’s class claims (in reliance on Green Tree v. Bazzle).

The appellate court found the trial court erred by compelling arbitration in reliance on Bazzle, but nevertheless agreed with the employee that the “parties’ reference to the AAA rules, which unambiguously state the arbitrator is to decide whether the parties’ arbitration agreement permits class arbitration, constitutes clear and unmistakable evidence of their intent that the arbitrator decide this issue . . . .”  The appellate court stated that because the parties consented to the AAA rules, this necessarily encompassed the AAA Supplementary Rules for Class Arbitrations, which provides that the arbitrator and not the court decides the arbitrability of class claims.  The appellate court distinguished Hartley v. Superior Court and other cases on the basis that in those cases the parties agreement “contained additional ambiguities” regarding who decided the arbitrability of class claims not present here.

(Universal Protection Services v. Super. Ct. (2015) ___ Cal.App.4th __)

Claims for Harassment, Intentional Infliction of Emotional Distress and Defamation Not Protected Activity For Purposes of Anti-SLAPP Statute

A physician alleged that her employers discriminated against her because of her race and gender and asserted claims for intentional infliction of emotional distress (IIED), defamation, and violations of the California Fair Employment and Housing Act, among other claims. The employers filed a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, alleging the lawsuit arose from a peer review process that was protected as an official proceeding. The trial court granted the motion in its entirety.

The court of appeal reversed the order granting the motion to strike as to the harassment, IIED, and defamation claims finding they did not arise from the protected peer review process, even though they sought damages for non-renewal of the doctor's contract following peer review, because those claims alleged that incidents of disparate treatment occurred throughout the doctor's employment and outside the context of peer review. The court of appeal upheld the dismissal of the remaining claims for retaliation, discrimination, failure to prevent discrimination, and wrongful termination finding they arose from a protected activity, i.e. a peer review decision not to renew the contract.

(DeCambre v. Rady Children's Hospital-San Diego (Cal. App. 4th Dist. 2015) 2015 Cal. App. LEXIS 224)   

Conversations Recorded at Direction of Law Enforcement in Connection with Criminal Investigation Are Admissible at Administrative Hearing

Employee was terminated after he allegedly intimidated, threatened to release sexually explicit photographs of, and physically assaulted a subordinate employee with whom he had a consensual relationship.  Employee appealed his dismissal to the State Personnel Board.  He moved to exclude evidence of the surreptitious recorded telephone conversations between him and the subordinate employee.  The Administrative Law Judge (ALJ) denied the motion to exclude evidence of the recordings, because they were performed at the direction of the Department of Justice (DOJ) and related to a criminal investigation of serious crimes.  The Board upheld Employee’s dismissal, but reversed the ALJ’s evidentiary ruling and held the evidence obtained from the secretive recordings was inadmissible.

Employee filed a petition for writ of administrative mandate, seeking to set aside the Board’s decision upholding his dismissal.  The DOJ filed a cross-petition, seeking to overturn the Board’s decision insofar as it excluded evidence of the recordings, but requesting that in all other respects the Board’s decision be upheld. 

The trial court denied Employee’s petition, and granted the DOJ’s cross-petition.  The court concluded the Board erroneously excluded the recorded phone calls because they were duly recorded by the subordinate employee at the direction of law enforcement as part of a criminal investigation.  The court further ruled that even assuming the recordings were inadmissible, there was sufficient remaining evidence to uphold the dismissal.  Employee appealed.

The court of appeal affirmed the trial court’s judgment, holding that the recorded telephone conversations were admissible at the administrative hearing.  The court explained that the Invasion of Privacy Act excludes evidence “obtained as a result of eavesdropping upon or recording a confidential communication” in violation of Section 632.  (Pen. Code , section 632(d).)  The Act, however, creates an exception for recorded communications by an individual acting at the direction of law enforcement in the course of a criminal investigation.  (Pen. Code , section 633.)  The court further explained that Section 633 does not limit the use of duly recorded communications to criminal proceedings. 

(Telish v. Cal. State Personnel Board (2015) ____ Cal.App.4th ___)