Let’s make 2014 the year in which all American workers are guaranteed access to paid sick leave

Let’s make 2014 the year in which all American workers are guaranteed access to paid sick leave

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By Sharon Vinick

Unlike other industrialized nations, the United States does not have a national paid sick leave policy.  According to a 2011 study by the Economic Policy Institute, 40% million Americans working in the private sector are employed in jobs that do not provide paid sick time.  And, the real cost of having employees go to work when they are sick is enormous.  The Centers for Disease Prevention and Control estimates that the annual flu season, alone, costs companies $10.5 billion in lost productivity and direct medical costs.  But, momentum seems to be building in favor of passing legislation that will provide paid sick leave to all employees.

In 2007, San Francisco became the first city in the country to require that all private companies – big and small – offer paid sick days to their employees.  At the time, business groups warned that providing paid sick leave would negatively impact local business.  As it turns out, these dire predictions were entirely wrong.  According to a 2011 study by the Institute for Women’s Policy Research, paid sick leave has benefitted employees without reducing employer profitability.

While it took a few years for other municipalities to follow San Francisco’s leave, by November 2013, six cities and one state had paid sick leave laws:  Connecticut, San Francisco, Washington, D.C., New York City, Jersey City (New Jersey) and Portland (Oregon).  Then, last summer, Senator Tom Harkin and Representation Rosa DeLauro introduced the “Healthy Families Act,” which would allow workers to accrue up to seven days of paid sick leave over the course of the year.  While the Act has not yet passed, each month, more states and municipalities seem to be jumping on the band wagon.  Earlier this month, the Newark City Council passed a paid sick leave ordinance, and similar legislation is under consideration in California and Washington.

The national discussion regarding paid sick leave is not limited to legislative bodies.  Earlier this month, Michael Miller of the Atlantic City Press, published an article regarding the move within New Jersey to provide paid sick leave.  And, on Monday, the New York Times published a story by Rachel Swarns which explained that cities that have adopted paid sick leave ordinances have not experienced an exodus of businesses.

But the biggest push towards providing paid sick leave to all Americans came just this week.  On Monday, during his State of the Union Address, President Obama said that “[a] mother deserves a day off to care for a sick child or sick parent without running into hardship – and you know what, a father does, too.”  This remark was widely considered to be support for national legislation requiring that private employers provide paid sick leave.  Then, two days later, actress Cynthia Nixon joined House minority leader Nancy Pelosi and a coalition of progressive groups in a “telephone town hall” in which they pushed for the passage of new legislation of paid sick leave.

Given that 74% of Americans believe that employers should be required to offer paid sick leave, it is high time that we pass legislation that guarantees all Americans access to paid sick leave.

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.

U.S. Supreme Court defines the meaning of the phrase “changing clothes”

U.S. Supreme Court defines the meaning of the phrase “changing clothes”

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By Sharon Vinick

Earlier this week, U.S. Steel and employers across the nation rejoiced as the United States Supreme Court issued a decision regarding the meaning of the phrase “changing clothes” within the context of the Fair Labor Standards Act.  To understand why this ordinary phrase received such extraordinary attention requires some understanding of the Act itself, and the right of labor unions to negotiate over what type of work is compensable.

In 1938, when Congress enacted the Fair Labor Standards Act, which governs the minimum wages and maximum hours for individuals working in non-exempt positions, it failed to include definitions of key terms, such as “work” and “workweek.”  The Supreme Court addressed the meaning of these terms in the 1946 case of Anderson v. Mt. Clemens Pottery Co., concluding that the term “workweek” includes all time during which an employee is required to be on the employer’s premises and includes time spent engaged in “preliminary activities . . such as putting on aprons and overalls [and] removing shirts.”  The Court held that these activities – which came to be referred to as “donning and doffing” — are “work” for which employees should be compensated.

Just three years later, in 1949, Congress amended the FLSA in order to provide that the compensability of time spent donning and doffing clothing, as well as washing, was an appropriate subject for collective bargaining.  Thereafter, unions were free to negotiate with employers with respect to whether employees would be paid for “time spent in changing clothes or washing at the beginning and end of each workday.”  And, not too surprisingly, in the rough and tumble of union negotiations, many employees ended up working under contracts which provided that they did not get paid for changing clothes, even if the clothing was required and took significant time to get in and out of.

In Sandifer v. United States Steel Corporation, decided earlier this week, steelworkers asked to be paid for time that they spent putting on and taking off fifteen items of “personal protective gear,” including flame-retardant outerwear, gloves, steel tipped boots, hard hats, and snoods. (For the uninitiated, a “snood” is basically a hood that covers the neck and shoulder area, rather like a balaclava.) Attorneys for the steelworkers argued that these items were “protective gear” and not “clothes” within the meaning of the FLSA.  In contrast, the employer, US Steel, argued that these items were encompassed within the meaning of the phrase “changing clothes” and were appropriately covered under the union contract.

The Supreme Court relied on 1940s dictionary definitions of the words “changing” and “clothes” to decide the case, holding that “changing clothes” encompassed both changing from street clothes to work clothes and layering protective gear over work clothes.  Thus, the court concluded, if a collective bargaining agreement provided that employees would not be paid for “changing clothes,” they would not be entitled to pay for time spent donning and doffing protective gear.

The opinion has been widely hailed as a victory for employers, but its “gotcha” effect is likely to be short lived. The next time the parties sit down at the bargaining table it’s unlikely that the putting on and taking off of protective gear will fly under the radar.

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.

U.S. lags behind western democracies in enacting anti-workplace bullying laws despite growing problem 2

U.S. lags behind western democracies in enacting anti-workplace bullying laws despite growing problem

dreamstime_xs_29765084By Supreeta Sampath

According to the National Bullying Institute, one-third of Americans are bullied at work, and workplace bullying is on the rise.  Recently the issue of bullying made national headlines when Miami Dolphins offensive tackle Jonathan Martin, accused lineman Richie Incognito of physical and verbal abusive behavior.  The absence of state or federal legislation to address this troubling trend sends bullies the message that they can get away with such behavior as yelling, screaming, humiliating, and sabotaging an employee’s career.  The legal void also signals to employers that they can turn a blind eye to bullying without fear of legal repercussions.

Compared to other western democracies, including Britain, Canada, France and Australia (which have all enacted anti-bullying legislation) the United States is in the dark ages on this important mental health issue.  But at the state level, there are signs that this may be changing.

Suffolk University Law Professor David Yamada has drafted model anti-bullying legislation, known as The Healthy Workplace Bill.  The Healthy Workplace Campaign defines workplace bullying as “repeated, health-harming mistreatment” that involves verbal abuse, offensive conduct that is threatening, humiliating, intimidating or work sabotage.

Since 2003, anti-bullying legislation has been introduced in 25 states (including California). While none has been enacted into law, there are currently 11 states that have bills under active consideration.

This kind of legislation will undoubtedly ignite the business lobby with their well-worn opposition arguments.  Employer groups will continue to argue that anti-bullying legislation will open up the floodgates of litigation and clog our already overburdened courts because “overly sensitive” employees will run to file a lawsuit every time they have a bad day at work.

But this focus on the frivolous is a straw argument that trivializes the real cost of bullying to workers and businesses alike.  The concern about legislating workplace civility can be addressed by careful drafting.  Rather than fighting workplace bullying laws, employer lobby groups should put their energies into crafting a law that will prohibit abusive or humiliating treatment that no decent employer would sanction, while leaving supervisors free to constructively manage and discipline employees.

It would be nice if internal policies and company grievance procedures had put an end to the harm of workplace bullying.  But that has not happened.  What we know from past experience is that sometimes it takes a change in law to change behavior.

Before the passage of laws like Title VII and California’s Fair Employment and Housing Act, it was legally permissible to harass and discriminate against employees on the basis of their race, color, gender, sexual orientation, disability, age, and other now protected categories.  Once these laws were in place, U.S. companies began holding their managers and employees accountable to  eliminate discrimination and sexual harassment in the workplace.

The good news is that, according to a survey by one human resources professional organization, 56% of U.S. companies already have some sort of anti-bullying policy.  Drawing on models from employers themselves, we should be able to frame a law that would eliminate frivolous claims by definition by requiring claimants to show not only of out-of-bounds conduct, but also documented harm.  While there may be some who still try to file unworthy suits, careful crafting of legislation will ensure that their suits are tossed out.  But throwing the baby away with the bath water is not the solution to a growing national problem.  It’s time for California and other states in the union to get serious about enacting anti-workplace bullying legislation.

Supreeta Sampath

About Supreeta Sampath

Supreeta Sampath is the founder of The Sampath Law Firm located in San Francisco, California. For over a decade, her legal career has been dedicated to serving the needs of those who have been denied justice. Ms. Sampath has extensive experience representing workers in employment discrimination cases on account of race, national origin, religion, gender, disability, age, sexual harassment, retaliation as well as cases involving labor code violations. From 2011-2014 she has been named a Rising Star in the field of Labor and Employment by Super Lawyers Magazine.

5 New Year’s resolutions for California employers

5 New Year’s resolutions for California employers

2014

By Joan Herrington

It’s the time of year when we think about making a fresh start for the new year.  Since I spend my days witnessing the consequences of workplace problems, I thought I would offer a few New Year’s resolutions I would like to see California employers make.

1.  Communicate with your employees.  Make sure they know what is expected of them and how they can succeed at their jobs.  Uncertainty creates anxiety and anxiety creates inefficiency. Whenever practicable, consult with employees about the things that will affect them.  Few things are more demoralizing than feeling ignored and unable to control your future.

2.  Pay them a living wage.  Your employees will be better able to focus on their work and productivity if they aren’t worrying about paying their bills.  So how about increasing the wages your lowest-level employees earn to something livable?  Some cities are demanding that employers do just that through their living wage ordinances.  And, at the state level, California is raising the minimum wage this year.  Although California’s minimum wage is not due to increase until July 1, 2014, some cities will increase their minimum wage rates as of January 1, 2014.  For example, San Francisco’s minimum wage is increasing from $10.55 to $10.74 an hour and in San Jose the rate will go up from $10 to $10.15 an hour.  Check your city’s ordinances to see if it will also increase the minimum wage rate in 2014.  By bridging the wage gap, we can get the economy back on track for working people.  In fact, studies by renowned economists show that such minimum wage increases can “serve to stimulate the economy as low-wage workers spend their additional earnings potentially raising demand and job growth.”

3.  Don’t underestimate the contributions of older workers.  Older workers are an experienced, dedicated, under-utilized resource.  Studies show that older workers are skillful, reliable, focused, and loyal employees.

4.  Welcome veterans into your workforce.  Our armed forces have had a hard enough time fighting for us in foreign lands.  Don’t make our workplaces another battlefield for them.  Be sure to update your discrimination policies to prohibit discrimination and harassment based on military or veteran status.  Assembly Bill 556 amended the Fair Employment and Housing Act to add military or veteran status as a protected characteristic.  Train hiring officers so that they may inquire into an applicant’s military or veteran status in order to provide a preference in hiring, but make sure they know to keep this information confidential.  And train managers to assist veterans with re-entry into the civilian workforce.

5.  Don’t let a discrimination or harassment complaint become a trigger for retaliation.  Every employee complaint of unfairness deserves a prompt, thorough investigation.  The EEOC provides guidelines on conducting investigations.  If you find that someone engaged in harassment or discrimination, don’t make excuses for them.  Take action to stop the wrong-doing and punish the wrong-doer.  Even if your investigation exonerates an accused supervisor, take affirmative steps to prevent retaliation.  It’s hard for someone accused not to bear a grudge.  Remember that how you handle complaints and prevent retaliation speaks volumes to all of your employees about your quality as an employer.

May 2014 be a productive and fulfilling year for you and the people who work so hard to make your business a success!

 

Joan Herrington

About Joan Herrington

As a former Administrative Law Judge with the California Fair Employment and Housing Commission, Joan focuses on protecting employment rights. Joan helps the Department of Fair Employment and Housing enforce the Fair Employment and Housing Act by representing employees in lawsuits, such as discrimination and harassment based on race, national origin, color, pregnancy, sex, sexual orientation, disability, medical condition, age, and religion. Joan also focuses on protecting employees and whistleblowers from unlawful retaliation. As a qualified and experienced mediator, Joan also helps resolve employment disputes.

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