Discrimination Charges, State by State

The federal Equal Employment Opportunity Commission (EEOC) released an online chart that allows you to view the number and types of workplace discrimination charges by state.  

The EEOC’s previous database allowed viewing only of the nationwide totals. The new chart contains statewide figures for fiscal years 2009-2011. 

California had 7,166 total charges in fiscal year 2011 which represents 7.2 percent of the nationwide total. Only Texas (10 percent) and Florida (8.1 percent) ranked higher in terms of percentage of nationwide claims. These figures are not surprising given the large populations of these states. 

By an overwhelming majority, retaliation is the number one EEOC charge filed in California, constituting 44.6 percent of all EEOC charges filed in the state. Retaliation charges were followed by race (33.1 percent), disability (29.4 percent) and age (25 percent). 

The state statistics mimic a nationwide trend. For two years in a row, retaliation has been the number one type of EEOC charge filed throughout the United States. 

These types of claims should be of real concern for employers. Employees have the right to complain of unlawful discriminatory or harassing treatment in the workplace. Retaliation takes many forms and includes adverse employment actions, such as demotions or terminations, following complaints of unlawful conduct. Subtle forms of retaliation, such as ostracism, may not be unlawful but can create morale problems and decreased productivity. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

HRCalifornia subscribers can visit the HR Library’s Retaliation page and Discrimination page for more information about preventing discrimination and harassment in the workplace, including preventing claims of retaliation.

Or, consider attending CalChamber’s next live seminar, HR Boot Camp: Silicon Valley, where our employment law experts will cover a range of important HR topics.

H-2B Visa Rule Halted

A federal district court ruled that the Department of Labor (DOL) may not implement a final rule relating to H-2B visas. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals into the U.S. to fill temporary non-agricultural jobs.

HRWatchdog previously reported on the DOL’s controversial final rule that revised the processes that employers must follow when obtaining a temporary labor certification from the DOL and when petitioning the Department of Homeland Security to employ a non-immigrant worker in H-2B status.

Many employers argued that the new rule was cumbersome, would increase costs and would decrease business competitiveness. Bayou Lawn and Landscaping Services, as well as professional associations, including the U.S. Chamber of Commerce, challenged the final rule in court.

A federal district court in Florida ruled there was a substantial likelihood that the plaintiffs would succeed on the merits of their claim that the DOL lacked authority to promulgate the rule, and issued a preliminary injunction to halt the DOL from going forward with the final rule.

The court noted that the DOL “acknowledges that it has no express congressional grant of authority to engage in legislative rule-making under the H-2B program and that such authority was vested instead in the secretary of the Department of Homeland Security.”

The DOL stated that, due to the preliminary injunction, employers should file labor certifications under the 2008 H-2B rule. The case still must be decided by the federal courts. For more information, visit the DOL’s final rule website.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Attorneys’ Fees Not Available In Meal and Rest Break Claims

The California Supreme Court ruled that the winning party in meal and rest break cases cannot recover attorneys’ fees. In a unanimous decision in Kirby v. Immoos Fire Protection, Inc., the court ruled that neither employees nor employers who prevail can receive an attorneys’ fees award.  

The decision may potentially reduce the financial incentive to bring meal and rest break claims. The court was asked to review whether attorneys’ fees could be awarded in meal and rest break cases under either one of two statutes:   

• Labor Code sec. 218.5, which provides that attorneys’ fees should be awarded to the prevailing party “[i]n any action brought for the nonpayment of wages ...”
• Labor Code sec. 1194, which provides that prevailing employees should be awarded attorneys’ fees in an action for any unpaid “legal minimum wage or ... legal overtime compensation.”

The court ruled that neither of these statutes allowed for an attorneys’ fee award in meal and rest break cases.

Under sec. 218.5, the court found that a meal and rest break action is not an action for nonpayment of wages but an action for failure to provide meal and rest periods. While the remedy for the failure is a wage, one hour of premium pay, the nature of the violation is failure to provide a break, not failure to pay wages.

Under sec. 1194, the court found that its plain meaning and history show it was meant to apply to minimum wage and overtime violations, and not to encompass meal and rest violations.

In the case before the court, the employer was the winning party, and the employer was not allowed to recover the attorneys’ fees it incurred as a result of having to defend against the meal and rest claim. 

The fact that the court’s ruling will also prevent plaintiffs/employees from using these statutes to recover attorneys’ fees in meal and rest break cases may help stem the ongoing flood of such claims. Plaintiffs’ attorneys may still add on other claims, such as PAGA (Private Attorney General Act) claims or other Labor Code violations, to obtain fees.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Federal Court Finds NLRB’s New Election Rule Invalid

A federal court for the District of Columbia ruled yesterday that the National Labor Relations Board’s (NLRB) new election rule is invalid. The court held that the NLRB did not properly adopt the controversial new rule, sometimes referred to as the “ambush election rule.”

The court found that the NLRB lacked the necessary quorum when it voted on the rule. Under federal law, a vote is valid if there is a quorum of at least three members voting on the rule. At the time the rule was adopted, the five-member board had three members, and only two of the three members voted on the rule. One member, Brian Hayes, expressed his opposition in a public hearing but did not actually participate in the vote. 

In response to the court’s decision, the NLRB announced that it suspended the implementation of the new rule and elections will proceed under the old rule.

According to the NLRB, about 150 election petitions were filed under the new rule. Many of those petitions resulted in election agreements and several have gone to hearing. The NLRB will contact all parties involved in the 150 cases and “provide them the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.” 

The NLRB may choose to hold a new vote on the election rule. As the court said, “nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.”

In 2011, the NLRB proposed major changes to the procedures it follows before and after conducting a secret ballot election to determine if employees wish to be represented for purposes of collective bargaining. The rule expedited the representation and election process. The NLRB adopted the proposed changes and the final rule went into effect on April 30, 2012.

The Chamber of Commerce of the United States of America and the Coalition for a Democratic Workplace filed the lawsuit challenging the now invalid rule.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Health Care Coverage and Pregnancy Disability Leave

California law was changed this year to require employers to provide continued health insurance benefits to an employee during the employee’s entire pregnancy disability leave (PDL).

Until this year, employees on PDL were entitled to continued health benefits only if the employer also provided such benefits to other employees with temporary disabilities or, if covered by the Family Medical Leave Act (FMLA), during any period of overlapping coverage with the FMLA.

To learn more about California’s pregnancy disability leave laws, register to join our employment law experts for our live Pregnancy Disability Leave and Baby Bonding webinar on May 17, 2012. 

Webinar topics will include:

• How to determine employee eligibility
• Length of leave
• When to require medical certification
• Types of wage replacement benefits
• Requests for leave and return to work
• Clarification of new 2012 laws 

Cal/OSHA Kicks Off 2012 Heat Illness Campaign

Cal/OSHA launched its 2012 heat illness campaign aimed at preventing worker deaths and illnesses due to heat exposure at outdoor workplaces.

Cal/OSHA already started inspections in California to ensure compliance with the heat illness prevention standard, and will conduct coordinated inspections across the state throughout the summer.

Cal/OSHA will also team with employer and worker organizations to educate workers about heat illness prevention. Cal/OSHA will continue its ongoing outreach efforts and engage in an extensive multilingual media campaign to remind workers and employers of their obligations.

Cal/OSHA will also provide statewide heat illness prevention training. Training dates are available from May through September. For more information about Cal/OSHA training, visit Cal/OSHA’s Heat Illness web page.

In 2005, California became the first state in the nation to adopt heat illness regulations on an emergency basis. The regulations became permanent in 2006.

In 2010, the regulations were strengthened to include a high heat provision applicable to five industries:  agriculture, construction, landscaping, oil and gas extraction, and transportation/delivery of agricultural products.

The high heat provision applies whenever temperatures reach 95 degrees and includes observing employees, closely supervising new employees, and frequently reminding workers to drink water.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Subscribe to HRCalifornia for additional information about heat illness prevention, including forms for developing a heat illness prevention plan for outdoor workers. Visit the CalChamber Store for compliance posters and an on-demand Heat Illness Prevention webinar.

‘Work for Warriors’ Program Links National Guard Members With Jobs

The California Chamber of Commerce is supporting a pilot employment program from the California National Guard. The “Work for Warriors” program matches the skills of unemployed and underemployed members of the California National Guard with the hiring needs of employers.

The program’s immediate goal is to reduce unemployment and underemployment among California National Guard members by 25 percent within one year, with a longer-term goal of lowering unemployment to less than 5 percent.

California’s National Guard force is the largest and most frequently deployed in the country, deploying more than 37,000 times to countries worldwide since September 11, 2001.

Employers wishing to partner with the California National Guard can:

• Email or call (916) 854-4426
• Register at the California National Guard website
• Or visit the program's Facebook page

2013 Health Savings Accounts and Flexible Spending Limits Announced

Health Savings Accounts (HSA) are pre-tax accounts available to individuals who are covered under a high-deductible health plan (HDHP). These accounts help employees pay for health expenses in the face of rising health insurance costs. Eligible individuals can accumulate money, tax-free, in HSAs to pay for qualified medical expenses.

To be eligible to participate in an HSA, the policyholder must, among other requirements, be enrolled in an HSA-qualified high deductible health plan with a minimum annual deductible. The Internal Revenue Service (IRS) announced an increase to that deductible amount.

For calendar year 2013, a high deductible health plan is defined as a health plan with an annual deductible that is not less than $1,250 for self-only coverage or $2,500 for family coverage. The maximum annual out-of-pocket expenses (deductibles, co-payments and other amounts, but not premiums) cannot exceed $6,250 for self-only coverage or $12,500 for family coverage.

The annual maximum HAS contribution for 2013 is:

• $3,250 for individuals with self-only coverage (an increase of $150 from 2012).
• $6,450 (an increase of $200 from 2012).

For more information, visit the IRS website. 

Updated Federal Health Benefit Coverage Requirements Tool

The U.S. Department of Labor (DOL) released an updated version of its elaws Health Benefits Advisor for Employers on April 18.

The elaws Health Benefits Advisor is a helpful tool that outlines the federal laws that can affect health benefit coverage provided by group health plans. These laws include: 

• Consolidated Omnibus Budget Reconciliation Act (COBRA)
• Health Insurance Portability and Accountability Act (HIPAA)
• Mental Health Parity Act (MHPA) and Mental Health Parity and Addiction Equity Act (MHPAEA)
• Newborns’ and Mothers’ Health Protection Act (Newborns’ Act)
• Women’s Health and Cancer Rights Act (WHCRA)
• Genetic Information Nondiscrimination Act (GINA)
• Michelle’s Law

The elaws Health Benefits Advisor also explains the legislation, statutes and regulations in Parts 6 and 7 of Title I of the Employee Retirement Income Security Act of 1974 (ERISA). Interested employers can access the updated Health Benefits Advisor for Employers from the DOL website.

The Health Benefits Advisor is one of a series of elaws (Employment Laws Assistance for Workers and Small Businesses) advisors developed by DOL to help employers and employees understand federal employment laws and resources. To access all of the elaws advisors, visit the elaws website. 

Got Brinker? HRCalifornia Has Updated Content and Guidance

As most employers know, the California Supreme Court issued its long-awaited decision in the Brinker Restaurant Corp. v. Superior Court case.

The Brinker case is extremely important to all California employers because it involves employers’ obligations relating to meal and rest breaks – an issue that’s caused significant litigation in federal and state courts and continues to be the source of class action lawsuits.

Our employment law experts updated HRCalifornia’s HR Library pages relating to meal and rest breaks (sign in required for CalChamber members), as well as all related quizzes, Q and A’s, and white papers, to reflect the changes to California law that result from the Brinker decision.

Not a member? Learn more about HRCalifornia.

To learn more about the Brinker decision, purchase CalChamber's on-demand Brinker webinar. CalChamber's employment law experts analyze the decision, and discuss best practices and tips on complying with the court’s decision.

EEOC Updates Enforcement Guidance on Arrest/Conviction Records

Today, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance document on employer use of arrest and conviction records in employment decisions under federal law (Title VII ).

The EEOC voted 4-1 to approve the guidance document. The EEOC also issued a Question-and-Answer document about the new enforcement guidance.

Among other topics, the guidance discusses how an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII. For example:

• “A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).”
• “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”

The guidance also discusses:

• Differences between the treatment of arrest records and conviction records; 
• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and 
• Best practices for employers.

The EEOC previously issued three policy statements on this issue and has investigated and decided Title VII charges from individuals challenging the discriminatory use of criminal history information since at least 1969.

The EEOC also issued a press release concerning the updated guidance document.  

HRCalifornia will provide updated information regarding application of this guidance for California employers.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel 

Comment Period Extended on Proposed Changes to Family and Medical Leave Act

The U.S. Department of Labor (DOL) said it is extending the comment period for its proposed rule to implement new statutory amendments to the Family and Medical Leave Act (FMLA).

The deadline for comments to be submitted has been extended to April 30, 2012.

HRWatchdog covered the proposed rule here. The proposed amendments would expand military family leave provisions and incorporate a special eligibility provision for airline flight crew employees.

The DOL said that it’s extending the comment period because of the interest expressed in the proposed changes and to obtain as much information as possible about the proposed changes. To view the proposed rule and submit comments, visit the federal e-rulemaking portal. Search by regulation identification number 1235-AA03.

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

The proposed language would extend the entitlement of military caregiver leave to family members of veterans for up to five years after leaving the military, as opposed to family members of “currently serving” service members. The proposal would also extend qualifying exigency leave to employees whose family members serve in the regular armed forces. At this time, the law covers only families of National Guard members and reservists.

For airline flight crew employees, the proposed revision would add a special hours of service eligibility requirement and specific provisions for calculating the amount of FMLA leave used. The DOL said the changes would better take into account the often difficult to track hours worked by crew members.

Visit the DOL's FMLA page for additional information on the FMLA, including information and fact sheets on the proposed revisions.

Heat Illness Regulations Bill Identified as Job Killer

The California Chamber of Commerce identified AB 2346 (Butler; D- Los Angeles) as a “job killer” bill.

AB 2346 creates unnecessary and onerous provisions to address the heat illness prevention regulations that exclusively and heavily impact the agricultural industry. If passed, the bill would place in law new requirements that exceed the current regulatory ones (which are working well) and impose unreasonable fines and penalties when compliance is in question. It includes a private right of action.

AB 2346 was passed by the Assembly Labor and Employment Committee yesterday with a vote of 5-2.

This bill creates such complex and overly burdensome requirements that agricultural employers may not be able to comply. The bill is filled with procedural traps nearly impossible to avoid. As such, the overly punitive fines for violations could be a disincentive for employers to remain in California.

Check CalChamber.com for more details on the bill, and for a link to additional information. While you’re there, take a look at Dan Walters’ video on the effectiveness of CalChamber’s “job killer” list.