What do the United States and Papua New Guinea have in common?

What do the United States and Papua New Guinea have in common?  According to the United Nations, they are the only countries in the world without any sort of paid time off for new mothers.

In the Mother’s Day edition of his HBO show “Last Week Tonight,” John Oliver, the British comedian who is perpetually incredulous over most things American, juxtaposed the maudlin, corporate exploitation of the holiday with the grim economic realities facing working mothers in this country.  But Oliver noted a tiny bright spot.  Three states, California, Rhode Island and New Jersey, have some sort of limited paid leave for new mothers.

California’s paid family leave program is modest.  Payments are only partial and a worker can be fired for taking paid family leave unless they are also eligible for job protection under the California Family Rights Act (“CFRA”).  Yet, only workers at companies with 50 or more employees and who have been on the job for at least a year are covered under CFRA.  Accordingly, only about half of California employees can actually take advantage of the paid family leave program.

That may be about to change.  Senate Bill 406, currently pending before the California Legislature, would expand the job-protection coverage of the paid family leave program to include smaller companies of 25 or more employees.  It would also expand the definition of family member for whom a worker can take job-protected leave to care for to reflect the realities of modern families, by including grandparents, grandchildren, siblings, and adult children.

Even this modest expansion of the paid leave program has drawn the garment-rending wailing of the Chamber of Commerce, who predictably labeled it a “job killer.”  In the Mother’s Day clip, Oliver mocked the overwrought rhetoric and overblown fears of Congressional opponents of the unpaid Family Medical Leave Act (“FMLA”) in 1992:  “Our businesses shall crumble, or cities shall burn and hungry wolves will roam the streets.”

In reality, a 2012 Department of Labor survey showed only 15% of employers reporting any significant difficulty in complying with the FMLA.   There were no reports of hungry wolves.  A similar study conducted ten years after the enactment of California’s Paid Family Leave Act found that 90% of California employers considered the Act to have a positive or neutral effect on productivity, profit, morale and costs.

Progress in protecting the economic security of families seems to happen only incrementally.  The expansion of California’s paid leave program reflected in SB 406 is a great next step.  Let’s leave Papua New Guinea in the dust!

Watch the John Oliver clip by clicking here.

Curt Surls

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

Three California bills to support this Equal Pay Day

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Today we recognize Equal Pay Day, which marks the day in 2015 when the average woman could finally stop working if she was hoping to make the same amount of money the average man made last year.  Last year, Equal Pay Day was on April 7th.  In 2013, Equal Pay Day was on April 9th.  That’s right, over the past few years the day where women finally catch up has become harder, not easier, to reach.  In fact, according to a recent study  the gender wage gap in this country will not close until 2058.  The outlook is a little better for California, where the gender wage gap is projected to close in 2042.  But this is unacceptable.  Some women will never see pay equity in their lifetime.

Even more distressing is the size of the wage gap and its economic consequences for women of color, particularly in California.  While white women in California earn 76 cents for every $1 a white man makes, Hispanic women and African American women earn only 44 cents and 64 cents, respectively, for every $1 a white man makes.  California ranks third, only to Texas and New Jersey, for the largest wage gap for Hispanic women.

But not all hope is lost.  Some members of the California legislature are taking an aggressive approach to tackling the gender wage gap this year, with three separate measures that address pay equity directly, and dozens of other bills that address women’s economic security generally. Here are the three pay equity bills to watch:

  • Senate Bill 358, by Senator Jackson, will help strengthen California’s Equal Pay Act by eliminating loopholes that prevent effective enforcement and by empowering employees to discuss and inquire about pay in the workplace without fear of retaliation.
  • Assembly Bill 1017, by Assemblymember Campos, will help prevent employers from preserving and perpetuating historical pay inequities by prohibiting them from asking job applicants for prior salaries.  This bill will help put men and women on more of an equal footing when negotiating pay with prospective employers.
  • Assembly Bill 1354, by Assemblymember Dodd, will require state contractors to submit equal pay reports to the Department of Fair Employment and Housing, containing summary data of their workers’ compensation, broken down by race and gender.  Simply by requiring employers to compile this data, the bill will help employers take proactive measures to ensure their pay practices are fair and equitable.

All three of these bills will be heard in their first policy committee next Wednesday, April 22nd. Call or write your state representatives and tell them to support these important bills that will help bring us closer to finally achieving pay equity in California.

Closing the wage gap: Why employers should stop asking for prior salaries

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By Mariko Yoshihara

In an op-ed published this week in the San Francisco Chronicle, I argue that we are forcing women to bear the burden of the gender wage gap when we allow employers to use prior salaries as a basis for pay decisions during the hiring process.  It’s bad enough employers make you show your cards in salary negotiations, in some cases it’s not an option not to disclose, but it’s even worse when we know women have historically been dealt an unfair hand.

Women today are still making 78 cents for every dollar a white man makes and the wage gap is significantly larger for African American and Hispanic women who make 44 cents and 64 cents, respectively, for every dollar a white man makes. Disclosing these depressed wages to new employers undermines the value of women’s work and makes it more difficult for women to negotiate fair pay.

There are many things that contribute to the gender wage gap, but there is one simple way to help minimize its impact on women trying to get ahead — limit the employer’s ability to seek information about prior pay.  It’s time to equalize the playing field when it comes to negotiating salaries.  Allowing women to ask for salaries that are untethered to past inequities would be an important first step.

Read the full opinion piece here.

Kicking them while they’re down: Bill to treat former substance abusers as independent contractors is wrong

Sacramento State Capitol of California Building

By Sami N. Khadder

A new effort is underway to deprive a certain class of workers of the most basic benefits and protections of employment.

Last month, Assemblymember Marie Waldron (R-San Diego) introduced AB 500, which would allow employers to hire workers who have successfully completed a drug rehabilitation program following conviction of a non-violent felony as independent contractors rather than employees for a period of two years.

The targets of this bill are workers for whom steady and fair employment is a means to rebuild a life and to prevent a relapse of the ravages of addiction. AB 500 is a cynical bill that would codify discrimination and perpetuate mistreatment of this already vulnerable group.

For starters, the language of the bill violates existing federal anti-discrimination law. The Americans with Disabilities Act  considers those who have received treatment for drug or alcohol abuse as qualified individuals with a disability who are entitled to reasonable accommodation. Contrary to the express purpose of the ADA, AB 500 stigmatizes individuals who have completed a substance abuse rehabilitation program by denying them, for a period of two years, the legal protections normally offered to employees in California. Stigmatizing people with disabilities is what gave rise to the disability rights movement to begin with.

Codifying second class status for workers with a substance abuse history is bad enough, but the effect of the bill is even more insidious. Under California law, a person who provides services for another person or entity is presumed to be an employee of that person or entity – as opposed to an independent contractor. The distinction is meaningful. Independent contractors are not entitled to the protections of the California Labor Code, which means they have no minimum wage or overtime protections and no entitlement to meal and rest breaks. Independent contractors are also exempted from the laws prohibiting discrimination or retaliation in the workplace, and they are not entitled to unemployment insurance or Social Security contributions. The bill would also allow employers to avoid the cost of carrying workers’ compensation insurance, leaving independent contractors unprotected in the event of a workplace injury.

Employers often complain that the cost of providing these benefits to their workers has grown too high and some may look with favor at the proposed economic windfall — being able to hire rehabilitated drug offenders for two years for less than the minimum wage, without having to provide overtime pay, workers’ compensation insurance or protections from unlawful discrimination.  But these benefits are essential to providing a fair and safe work environment for California workers. Without these protections, the State would invariably end up shouldering much of the costs, while the employers would reap all the benefits.

Some advocates of the bill may believe that the bill encourages employers to give people with a history of substance abuse an opportunity to work their way into full employment status.  But AB 500 would require applicants to disclose to potential employers that they have been convicted of a crime. Such disclosure is currently prohibited under certain circumstances.  More importantly, there is ample evidence that qualified applicants who disclose their criminal history are just as likely to be denied employment altogether, a result directly contrary to the intended result.

Others may take a harder line toward former substance abusers, believing that second class status in the workplace is appropriate because substance abusers should suffer the consequences of their poor decisions. But how does stripping anti-discrimination protections, overtime, and workers’ compensation achieve any policy goal related to rehabilitation or substance abuse prevention?

What is undeniable is that AB 500 targets a vulnerable constituency. And if the move to strip their rights is successful, it could embolden employers to seek further erosions of the benefits and protections of employees. Who would be next?  The long-term unemployed, veterans, the homeless? For those already struggling to become productive members of society, our goal should be to eliminate obstacles, not create them.

Sami Khadder

About Sami Khadder

Sami N. Khadder is the founder of the Khadder Law Firm. He has a decade of litigation experience, with the majority of his career dedicated to fighting for the rights of employees and individuals. Mr. Khadder began his career as an intellectual property defense attorney, but soon realized that the pursuit of justice on behalf of those who need it most was a far more gratifying use of his legal education and experience. Mr. Khadder looks forward to continuing the fight for justice.

The buck starts here: Living wages and sustainable employment

Large furniture warehouse

By Anne Richardson

The massive push toward subcontracting and supply chains I wrote about in my prior post didn’t happen overnight, and it certainly won’t be fixed overnight either. There are many pieces to this puzzle, all in the service of one big overarching principle: Lead companies must take their fair share of responsibility for the pain and misery that is generated when they squeeze too much from their suppliers and subcontractors. Here are some of the pieces:

1.  Challenge Payroll Fraud.  What used to be called “misclassification” of employees as independent contractors is really the practice of defrauding employees out of social security, overtime, worker’s compensation, health and safety protections, family and medical leave, unemployment insurance, protections against discrimination, and the right to bargain collectively, among other things. In addition to losing these protections, employees who become “independent contractors” have to cover their own costs.  

Cases challenging bogus “independent contractor” status have been multiplying as more and more businesses adopt this practice in order to cut their payroll costs. Last August, the Ninth Circuit held that thousands of FedEx truck drivers were employees, even though FedEx called them independent contractors.  Recently, the judge in a misclassification case against Uber ruled that a jury should decide whether the drivers employees of the company, and noted that “many of the factors in that test appear outmoded” in the “context of the new economy.” 

Former Secretary of Labor Robert Reich has proposed that, instead of waiting for the courts to decide these cases one-by-one, the IRS and Department of Labor adopt a new, simpler test: “Any corporation that accounts for at least 80 percent or more of the pay someone gets, or receives from that worker at least 20 percent of his or her earnings, should be presumed to be that person’s employer.”

2.  Treat Lead Companies as Joint Employers. Every federal circuit and many state courts have their own version of the “joint employer” test to determine when one company should be liable for the wage and hour violations of another – including subcontractors or franchisees. Some of these tests are being re-examined to take into account the ways in which “lead companies” maintain control.

In December 2014 the National Labor Relations Board issued complaints naming McDonald’s Corp. as a joint employer of workers at its franchises. In another case, the NLRB has proposed a “totality of the circumstances” test that would impose joint employer status on any company that wields sufficient influence over the working conditions of the other company’s employees, to make meaningful bargaining impossible in its absence. A similar rule in state and federal courts would recognize the significant power and control that is exerted from the top.

3.  Enforce Supply Chain Liability. Regulators and legislators are also coming to recognize the need to affix responsibility at the top of an industry.  California Labor Code Section 2810.3, which became effective January 1, 2015, provides that an employer must share responsibility for wages, taxes, and workers compensation with the middlemen who provide the labor to the employer. In a similar vein, a provision of the Fair Labor Standards Act known as the “hot goods” provision, prohibits the selling or transporting in commerce any goods produced in violation of the FLSA’s wage and overtime provisions.

Decent wages and safe working conditions are not just an idealistic goal. The lack of a healthy middle class hurts all of us. Public health researcher Richard Wilkinson has reported that the average well-being of modern societies — including health, lifespan, literacy levels, crime levels, and so on — is no longer correlated with national income or economic growth, but with the extent of income inequality. The Center for American Progress has just issued an exhaustive report on “inclusive prosperity,” concluding that nations succeed when their middle class is secure in the expectation that those willing to work are able to work and that standards of living will increase.

Clearly, more work needs to be done. It is time to invest in living wages and sustainable employment, instead of pioneering ever more ways to create dead-end jobs that benefit only those at the very top.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

Lactating men, toilet stalls and the arc of justice

By Christian Schreiber3 month baby

For the vast majority of workers, the laws that protect their rights operate silently in the background. This is especially true in California, where labor laws are frequently hailed – or assailed – as the country’s most protective for workers.

It’s easy to forget that the standards we take for granted today were once uncharted frontiers, but sometimes a reminder is in order: the provision of new rights always meets resistance, but seldom do we regret the expansion.

A recent example makes the point. The U.S. Supreme Court denied a breastfeeding mother’s last chance at an appeal last month. The plaintiff in the case, Angela Ames, alleged that she was wrongfully terminated from her job at an Iowa insurance company after returning to work from pregnancy leave. Ames requested a room where she could express breast milk, and was instead told by her boss to “go home and be with your babies.” The district court tossed the case on summary judgment, noting that her sex discrimination claims could not stand because “lactation is not a physiological condition experienced exclusively by women.” The 8th Circuit upheld the decision.

If you’re thinking this sounds like an article in the Onion, you’re not alone. Legal opinions relying on “Strange But True” articles make me think that my trivia-minded children have a too-near-term future on the bench. And I can’t be alone in being reminded of this:

Unfortunately, Ames and other women trying to breastfeed remain unprotected in many settings, and experience resistance in even unlikely places. Last fall, my sister-in-law was prepared to sit for her board exams in for Pulmonary and Critical Care Medicine. When she asked the American Board of Internal Medicine for accommodation to express milk during the 10-hour testing day, she was told to spend her break time pumping. Because as every lactating man knows, pumping is the same thing as studying, resting, eating, smoking, or taking a break.

In California, breastfeeding rights are well established. But because she lives in Indiana (where she is currently completing her fellowship), she enlisted help from me and the ACLU’s Women’s Rights Project. We wrote a letter explaining the shortsightedness of ABIM’s position. The good news is ABIM accommodated her request, and subsequently changed its policy. Ms. Ames was not so lucky.

California working mothers can now rely on Labor Code section 1030, which since 2003 has required employers to provide unpaid time and non-bathroom space for employees to express breast milk. When the bill mandating these changes was debated, however, the Chamber of Commerce predictably opposed the bill.

The Chamber’s position evolved over the next decade. Last year it did not oppose AB 1787, which would have required large commercial airports to provide places for nursing mothers. But the Chamber is nothing if not consistent. Instead of recognizing that today’s vanguard is tomorrow’s baseline, the Chamber still reflexively opposes any “new rights” in the workplace, typically tagging such efforts as “job killers.”

It is time our elected officials stop crediting the tired perspective of holdouts quivering at the edge of a civil rights moment. Time has a way of showing that the Chamber’s unbroken chorus of “impending doom” and “runaway rights” holds neither moral nor economic sway. And it never stands the test of time. A dozen years later, what California employer is clamoring to end the tyranny of nursing mothers being released from the confines of a toilet stall?

The Chamber’s economic perspective is just as faulty.. Consider the following two slides:

image1

image2

If the Chamber’s perspective were valid, the laws enacted to protect workers in San Francisco should have crushed the City’s economic vitality. Plainly,they didn’t..

The Legislature is poised to consider any number of bills this session that will expand the rights of workers, including a renewed effort to guarantee equal pay for working women.  When the Chamber begins its craven “job killer” refrain, as it will both publicly and privately in the days ahead, it should be met with  skepticism. California legislators need not shy away from the reality that civil rights legislation has demonstrated a distinct, eastward migratory pattern.

If the arc of the moral universe is long and bends towards justice, short-term plans that offer only the promise of continued inequity should be met with a new chorus. “See me in 10 years if you’re still interested in reversing these rights. Otherwise, I hear they’re hiring in Iowa.”

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Will the “real” employer please stand up? The consequences of the global shift to subcontracting, franchising, and outsourcing

By Anne Richardson

A fundamental change has taken place in the American workplace, and we are only now beginning to realize just how monumental it is.

A new book, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done About It, by David Weil, makes the case that in every corner of the employment world, companies are increasingly shedding their employees, while maintaining control over the ultimate product or services to be provided under the “lead” company’s logo and brand. Beginning with peripheral services such as janitorial and security, and gradually including ever more central services, such as receptionists, truckers, and even lawyers, large employers are deliberately subcontracting out their work.

warehouse

Here’s how it works: A member of a loading dock crew is paid by one company, which is in turn compensated by another company, for the number of trucks loaded. That company, Schneider Logistics, manages distribution centers for Wal-Mart. Wal-Mart sets the price, time requirements, and performance standards that are followed by Schneider, which in turn uses those standards to structure its contracts with its subcontractors.

Why do they do it? Employers can reduce costs by pushing many of the responsibilities connected to being the employer of record down the chain to someone else. Yet by controlling the quality and price of their goods and services, they do not lose their reputations and the goodwill of their brands.

But should lead companies be allowed to have it both ways? Should they be permitted to control the production, delivery, and cost of goods and services, without sustaining any liability for the manner in which their contractors provide them? To take a real world example, if a company like Wal-Mart sets a price that is so low that the only way for suppliers to meet it is by underpaying their employees, isn’t that really Wal-Mart’s responsibility?

This new “fissuring” model has drastic consequences for employees who have been forced to trade in traditional jobs at a lead company, with benefits and a pension plan, for part-time temporary positions with no benefits. Pushing responsibilities down the chain often means that the direct employer is less well capitalized and less capable of maintaining wage and hour standards, or enforcing health and safety rules. Since the company on top sets the price, often as low as the market will possibly bear, the company on the bottom is forced to cut to the bone. Many of the subcontractors are small businesses that go under, and then reemerge as a different company, which results in there being no responsible party  to foot the bill when legitimate claims are made.

Fissuring also negatively affects the health and safety of   the broader public. Weil argues that a significant contributing factor of the devastating environmental oil spill caused by the BP Deepwater Horizon accident in 2009 was the extent of BP’s use of contractors. In order to shield itself from liability by maintaining less control over its subcontractors, BP did not sufficiently oversee the safety component of the operation. Other authors have similarly noted the increase of injuries and fatalities that have accompanied the rise of contracting in, for example, coal mining, construction, and trucking, among others.

To be sure, there are some who benefit from the practice. The third consequence of “fissuring” is to shift the surplus generated by businesses away from the workforce and to investors. This helps to explain why the operative trend in the American workforce is the widening income gap between the rich and the working poor. The gap between the wealthy and the poor is at a hundred year high.  For example, in 1965, the average CEO made about 20 times what the average worker made at any given company. By 2013, the ratio had grown to approximately 331 to 1. What’s fascinating is that a recent study found that not only did people worldwide grossly underestimate the ratio of CEO to worker pay, but that people across all backgrounds preferred a smaller pay gap.

Weil, who was appointed the Administrator of the Wage and Hour Division of the United States Department of Labor in May 2014, argues that since “[t]he modern employment relationship bears little resemblance to that assumed in our core workplace regulations,” laws and judicial decisions need to adapt current rules about workplaces to the realities of the modern world.

In every corner of the American workforce, the pressures to cut costs and improve the investor’s return have resulted in a worsened standard for the middle-class worker, as well as a worsened standard of health and safety. What can be done about it? Stay tuned for my next post.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

It’s time to proclaim your own “Ed Roberts Day”

EdRoberts

Most of us did not observe “Ed Roberts Day” on January 23rd, but we should have.  Roberts, one of the founders of the independent living movement, lived a bold life “out-loud,”as one of a cadre of activists who catalyzed the movement for disability rights. That movement empowered people with disabilities to take control of their own lives and demand a world free of barriers to access and opportunity.  In public spaces and workplaces, all of us have benefitted from the philosophy and practice of universal access and inclusion advanced by Roberts and the disability rights movement.

The short film “Free Wheeling” tells the story of Ed Roberts’ evolution as a trailblazing disability rights activist.  After contracting polio when he was fourteen, he became paralyzed and lived from then on with technical assistance from an iron lung and, eventually, a power wheelchair.  When, after graduating from UC Berkeley in the 1960’s, Roberts sought help finding employment from the California Department of Rehabilitation, the counselor told him that he was “too disabled to work.”

Thirteen years later, Governor Brown (then in his first term) appointed Roberts to head the very agency that had sent him packing.   Governor Brown’s appointment of a person with severe disabilities to head the Rehab Department was considered by many a radical act.

In fact, Roberts was an avowed and proud radical.  He was on a mission to force a paradigm change in both how people with disabilities viewed themselves and how we as a society view people with disabilities.

Most people never thought of independence as a possibility when they thought of us. But we knew what we wanted, and we set up CIL to provide the vision and resources to get people out into the community. The Berkeley CIL was also revolutionary as a model for advocacy based organizations: no longer would we tolerate being spoken for.

The Berkeley Center for Independent Living, founded by Roberts and other activists in the 1960’s, is now housed within the ultra-accessible, and aptly named, Ed Roberts Campus in Berkeley.   This magnificent building is the epicenter of disability activism, housing, under one roof, many of the most important disability rights organizations in the country, if not the world, including the World Institute on Disability (co-founded by Roberts) and the Disability Rights Education and Defense Fund.

Last week I served as a volunteer attorney at the Ed Roberts Campus, staffing the workers’ rights disability law clinic offered by the Legal Aid Society of San Francisco-Employment Law Center.  People with disabilities often seek help from the legal clinic because, like Ed Roberts, someone in power thinks that they are too disabled to work.  And when they walk or wheel through front doors, they enter a place that embodies the vision of the independent living and disability rights movements of which Roberts was so much a part.

ramp-up-3.ed robertsThe Ed Roberts Campus exemplifies the concept of “universal design,” the idea that what designers refer to as the “built environment” should be “more usable by as many people as possible at little or no extra cost.” Barriers have fallen away as curving ramps offering smooth travel from the first to the second floor and elevators can be called with the press of a wheelchair footrest.  The Ed Roberts Campus is a beautiful symbol of how far we have come in the struggle for a barrier-free world. The work that happens in that beautiful space is a reminder of how far we have yet to go to achieve Robert’s goal of a barrier-free world.

The Ed Roberts campus is a place where people with and without disabilities are inspired to action.  It is a fitting tribute to the man who inspired a movement to get us there.   And really there’s no reason to wait until Governor Brown issues next year’s “Ed Roberts Day” proclamation to move from inspiration to action.

 

Jean Hyams

About Jean Hyams

Jean K. Hyams is a founding partner of Levy Vinick Burrell Hyams LLP, a Bay Area boutique law firm focused on representing employees in employment disputes. She left a career as a manager in high-tech companies to pursue her dream of becoming a civil rights lawyer. She has been named by Northern California Super Lawyers as one of the Top 50 Women Lawyers in Northern California for the past five years and her firm has been rated one of the Best Law Firms (Tier 1 – Employment Law) by U.S. News and World Report. After almost a quarter-century in practice, she now also serves as a court-appointed and private mediator of employment disputes. Jean is Co-Chair of the CELA VOICE.

Six Years After the Lilly Ledbetter Fair Pay Act and Still More Work to Do

lillyledbetterjpg-822dc3fdc9542b67 By Sharon Vinick

Six years ago today, President Obama signed his first piece of legislation — the Lily Ledbetter Fair Pay Act – to extend the time period in which an employee could file a claim for pay discrimination.  The Act overruled the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber, which Ledbetter said allowed her employer to pay her unfairly “long enough to make it legal.”

At the time of its passage, President Obama said that the passage of the Act would “send a clear message that making our economy work means making sure it works for everyone.”

Sadly, in the six years since the passage of the Act, the gender pay gap has – at best – barely budged.   Indeed, by some estimates, the wage gap has actually widened in the last few years.

If the new Congress is truly committed to the goal of pay equity, concrete steps must be taken.  First, Congress should pass the Paycheck Fairness Act, which will strengthen the Equal Pay Act and help secure equal pay for equal work.  Second, Congress must act to increase the minimum wage, as women make up two-thirds of the country’s minimum wage earners.   Third, Congress should enact a universal, government-paid preschool program, as 10% of the wage gap is attributable to time that women spend outside of the workforce.

While the Lily Ledbetter Fair Pay Act was a step in the right direction, Congress still has a lot of work to do to close the persisting wage gap.  Let’s hope by the Seventh Anniversary of the Act, we are closer to pay equity and an economy that truly works for everyone.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

The myth about sleeping on the job

24-Hour Shift Workers Entitled to Pay for All Hours Under the Employer’s Control

cctv security system

By Hina B. Shah

When a receptionist has some down time at work, she surfs the internet or flips through a magazine.  Her employer still pays her for this time because she’s required to respond to calls or visitors.  It is a benefit to the employer.  However, when it comes to employees who work on-call hours or 24 hour shifts at the jobsite, employers and many lower courts have been reluctant to pay workers for this time.  No longer.  Earlier this month a unanimous California Supreme Court clarified that on-call employees required to spend time at their worksites and under the employer’s control are entitled to compensation for all hours, including sleep time.

The ruling surprised some observers despite the fact that California law plainly requires that employees must be paid “for all hours worked.”  In reporting on the 18-year conflict between security guards and CPS Security Solutions, Inc., some legal press described the workers as “idle” and “getting paid to sleep.” This is far from the truth.  CPS Security required the guards to spend their on-call time at the jobsite. The guards were required to investigate in uniform all alarm sounds, or any noise, motion or other activity they heard during their on-call time. They had to stay vigilant and not consume alcohol.  They were not allowed to have pets, children or adult visitors.  Most importantly, the guards had to ask their employer for permission to leave.

Despite these numerous restrictions, CPS Security Solutions, Inc. paid the guards only when they were responding to an alarm or had asked for permission to leave but were either waiting or had been denied relief.  Guards who were required to remain on the construction site during their on-call hours were not paid.

The most galling part of CPS’ practice, however, was the way in which the company profited from these rules. While the workers were required to remain on the premises and not paid for this time, CPS charged its clients for the round-the-clock presence of these guards.  In fact, the company admitted that these guards were an integral part of their business model.

CPS Security is not the only firm using this business model.  Employers of domestic workers, private correctional officers, environmental contractors and others refuse to pay for on-call time unless the worker is actively engaged in responding to calls or emergencies. It would be hard to imagine asking a firefighter to remain on alert at all times, but pay only for the time she responds to a fire, yet this is just what these companies have been doing.

The court’s ruling should be far-reaching. California has long recognized that long hours are harmful to employees’ health.  There is a growing body of evidence that links excessive work hours with substantial risks for occupational injury and illness.  And despite claims that “paying for sleep” will have a negative impact on business, in fact the decision may boost the economy. One obvious way to cut down on costs is to hire more employees, rather than one employee for a 24-hour shift.  Employers benefit when they have on-call workers at their job sites, and so do their clients. Now, more workers may benefit as well.

Hina Shah argued before the California Supreme Court for a number of organizations as amici curiae on behalf of the plaintiff. 

Hina Shah

About Hina Shah

Hina B. Shah is an Associate Professor of Law and Co-Director at the Women’s Employment Rights Clinic (WERC) of Golden Gate University School of Law, addressing employment and labor issues faced by low wage and immigrant workers.

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