NLRB Gives Employers Greater Discretion to Limit Union Activity on Their Premises

The National Labor Relations Board (the “Board”) recently issued a decision in UPMC Presbyterian Shadyside that reverses longstanding Board precedent and holds that employers no longer have to allow nonemployee union representatives access to public areas of their property unless (1) the union has no other means of communicating with employees or (2) the employer discriminates against the union by allowing access to similar groups.

The UPMC case arose after the employer, a hospital, ejected two union representatives from its cafeteria, where they had been discussing organizational campaign matters with and providing union literature and pins to employees.  Previously and for many years, the Board had held that an employer could not restrict nonemployee union representatives from engaging in promotional or organizational activity in its public spaces, including cafeterias, so long as the union representatives were not “disruptive.”  In UPMC, the Board returned to a more common-sense approach and held that the National Labor Relations Act “does not require that the employer permit the use of its facility for organization when other means are readily available.” Continue Reading

Oregon’s Workplace Fairness Act Means Major Changes for Oregon Employers

Oregon’s Legislature just enacted the most significant legislation for Oregon employers in years.  The new Workplace Fairness Act has been hailed as a #MeToo law and seems intended to curb incidents of sexual harassment in the workplace, but its reach is significantly broader than that.

Key Changes and Takeaways

  • Employers are now required to have a written anti-discrimination policy. Most employers already have one, and this was always best practice, but now it is a requirement.  Additionally, anti-discrimination policies must now include the following:
    • A description of the process to report suspected discrimination or harassment;
    • A specific individual, and an alternate, to whom reports can be made;
    • Notice that employees have five years from an alleged incident to bring legal action;
    • Notice that employees may not be required to enter into a nondisclosure or nondisparagement agreement, but an employee may request such provisions in an agreement. If an employee makes such a request, the employee has seven days to revoke the agreement; and
    • Advice to employees and employers to document any alleged incidents involving discrimination or harassment.

This policy must be provided to all new hires, made available at the workplace, and given to anyone who reports suspected discrimination or harassment.

  • Confidentiality, nondisparagement, and no-rehire provisions in a settlement agreement relating to discrimination or sexual assault are prohibited, unless an employee requests it. The new law provides no guidance on what an employee’s “request” must look like – for example, are arm’s-length negotiations on a severance or settlement agreement that includes such a provision sufficient?
  • The statute of limitations for many unlawful discrimination claims increases from one year to five years. This is a huge change and will greatly expand the number of discrimination claims against employers.  It may also impact employers’ retention policies; we recommend consulting with legal on what, if any, changes you should make going forward.   
  • “Golden parachutes” for bad actors can be voided. Employers will no longer be forced to pay an executive a generous severance as he or she walks out the door amid sexual assault allegations.  If, after a good-faith investigation into reports of discrimination or harassment made against a supervisor, an employer determines the supervisor engaged in unlawful conduct, the employer may void any severance or separation agreement with the supervisor.  This provision may make negotiations with incoming executives more difficult, but it may also protect the companies from public pushback.

These changes go into effect this fall (91 days after the Legislature adjourns).  Please contact your Stoel Rives attorney with any questions regarding this new law.

California Legislature Moves to Codify Dynamex

With its decision last year in Dynamex, the California Supreme Court fundamentally changed the test for determining whether workers are properly classified as either employees or independent contractors.  Specifically, and as for claims brought under the California wage orders, the Supreme Court adopted the “ABC test,” which involves an analysis of the following three factors:  (1) whether the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) whether the worker performs work that is outside the usual course of the hiring entity’s business, and (3) whether the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.  Since that time, California employers and various industry groups have been lobbying the California legislature left and right to take steps to either limit the ruling’s application or expand it. Continue Reading

Are Employers Required to Pay Interns?

Spring is in the air and summer is around the corner. You can see the signs everywhere. Flowers. Chirping birds. Increasing temperatures. And summer intern resumes. Experienced HR professionals know they will soon receive many resumes from eager students or recent graduates hoping to work as interns in order to gain valuable experience and networking opportunities. Often, intern candidates offer to work for free in exchange for the chance to gain experience in a job or industry.

Of course the idea, however enticing, of free labor should raise red flags. Many “for profit” business have run into trouble by failing to pay minimum wage and overtime pay to “unpaid interns” who the courts concluded were actually employees. Continue Reading

California Legislature Proposes Legislation Broadening Racial Discrimination Laws

On April 22, 2019, the California Senate voted unanimously to update California’s anti-discrimination laws to include within the definition of the term “race” “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”  If the bill ultimately becomes law, California would become one of the first states in the nation to prohibit racial discrimination because of hairstyles.

Both California and federal laws are replete with laws prohibiting discrimination on the basis of race and other protected characteristics.  While those laws have been extended to protect certain religious headwear, courts have generally been reluctant to broaden those laws to protect non-religious hairstyles due to the position that such hairstyles are voluntary and nonpermanent.  California Senator Holly Mitchell, a Los Angeles Democrat, introduced SB 188 out of a concern that this reluctance allowed the proliferation of employer grooming standards that disproportionally affect African Americans and equate acceptable workplace grooming with majority standards of beauty.

While the bill was introduced to address legitimate and reasonable concerns about discrimination and the existence of both explicit and implicit bias in the workplace, some employers and commentators have expressed concerns that this new law could lead to frivolous claims or restrict an employer’s ability to require workers to wear certain protective coverings in the workplace.

Regardless of where you may stand on this issue, SB 188’s unanimous passage in the Senate portends the passage of this bill into law.  If and when that happens, employers with operations in California should take steps to update their policies and handbooks to ensure compliance.  This would include rethinking any grooming polices requiring employees to alter the appearance of their hair to conform to traditional appearance standards.  As for non-California employers, they should also keep a careful eye on this bill’s progress due to California’s status as a trendsetter in the area of employee rights.

Modern Workforce Increasingly Challenges Employers to Offer Telework Option

A little over six years ago, Yahoo! CEO Marissa Mayer issued her edict (well, memo) kiboshing work-from-home arrangements, driving Yahoo! workers back to their desks and sending shock waves that reached far beyond affected employees.  Mayer’s mantra was that in order to be “one Yahoo!,” workers needed to be physically connected in the workplace.  Her ultimatum ground the notion of telecommuting at Yahoo! to a screeching halt:  Get back to the office or don’t let the door hit you on the way out.

With probably more fallout externally than internally, Mayer’s remote work ban generated much criticism (amid some praise) and has continued to draw scrutiny even years later.  Whether her move was brilliant or a fool’s errand, one universal lesson to be drawn is that companies need to think critically about whether and to what extent remote work arrangements make good business sense.  This is particularly true as the workforce continues to trend away from traditional employment concepts toward freelancing, consultants, and gig workers.  More and more workers expect, if not demand, flexibility, including the ability to telecommute for at least some portion of their workweek.  With limited exceptions, however, this is privilege not a right. Continue Reading

California Employers: Have You Complied with the New Training Requirements?

Effective January 1, 2019, employers that employ five or more employees in California must provide one hour of harassment and abusive conduct prevention training to all nonsupervisory employees, and two hours of such training to supervisory employees. This mandatory training must be provided by January 1, 2020, and once every two years thereafter.

Under the new law, “employee” includes migrant, temporary and seasonal employees. The training must be provided by trainers with knowledge and expertise in the prevention of harassment, discrimination and retaliation. It must cover specific topics, including abusive conduct, as well as harassment based on gender identity, gender expression and sexual orientation.

Now that this training is mandatory, failure to provide it as required will make an employer much more vulnerable to liability should an employee sue in court for sexual harassment. Where unlawful sexual harassment is found, ignoring the training mandates opens up an employer to punitive damages, which are often several times greater than the employee’s compensatory damages.

There may be a shortage of training programs available towards the end of the year as all employers rush to meet the deadline. We encourage you all to engage in a training program early to avoid the last minute scramble and the possible decline of resources.

Stoel Rives has developed a cost-effective training program that includes Spanish-language training. For more information on the training requirements and Stoel Rives’ employee training services, please contact Vida Thomas at (916) 319-4669 or vida.thomas@stoel.com.

Department of Labor Proposes Rule to Make More Employees Eligible for Overtime

On March 22, the Department of Labor (“DOL”) published a new proposed rule that would make several changes to current overtime law.  The proposed rule, which is not yet in effect, would require that:

  • Employees make at least $679 per week ($35,308 annually) to potentially be exempt from overtime. (The current requirement, which has been in place since 2004, is at least $455 per week or $23,660 annually.)
  • Employers be allowed to use nondiscretionary bonuses and incentive payments such as commissions that are paid at least annually to satisfy up to 10 percent of the salary threshold.
  • “Highly compensated employees” make at least $147,414 per year (compared with $100,000 under current law).
  • Going forward, the DOL commit to periodically reviewing and updating the minimum salary threshold (after a public notice and comment period).

Continue Reading

California Court of Appeal Significantly Broadens the Scope of Employees Entitled to Reporting Time Pay

Many classes of California workers are entitled to “reporting time pay,” which is partial compensation given to employees who go to work expecting to work a certain number of hours but are deprived of working the full time due to inadequate scheduling or lack of notice by the employer.  Prior to the California Court of Appeal’s decision in Skylar Ward v. Tilly’s, Inc. most employers understood that such pay was only required if the employee physically appears at the workplace.  In that decision, however, the Court of Appeal told those employers that they were wrong. Continue Reading

Washington Supreme Court Announces Zero-Tolerance Approach to Sexual Harassment in Places of Public Accommodation

The Washington Law Against Discrimination (WLAD) prohibits “places of public accommodation” from discriminating against their customers on the basis of several protected characteristics, including, without limitation, sex, race, national origin, and sexual orientation. Sexual harassment is one prohibited form of such sex-based discrimination.  Generally speaking, a place of public accommodation is any business that is open to the public.

On January 31, 2019, the Washington Supreme Court announced a new sexual harassment standard for places of public accommodation. In so ruling, the Court held that, under the WLAD, employers are “directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation.” Floeting v. Group Health, Inc., No. 95205-1. Continue Reading

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