Tis the season: Giving thanks for new employment protections

Tis the season: Giving thanks for new employment protections

By Lisa Mak

In the spirit of the holidays, here’s a round-up of five legal developments that California workers and their advocates can be thankful for this year.

Fair Pay Act

In October 2015, Governor Brown signed the California Fair Pay Act to give our state the strongest equal pay protections in the nation.  In 2014, a woman working full-time in California still earned an average of only 84 cents to every dollar a man earned – a wage gap that has remained unchanged for nearly a decade. The new law mandates equal pay for “substantially similar work,” instead of the old outdated language requiring equal pay only for “equal work on jobs” at the “same establishment.” Thus, male and female employees are now entitled to equal pay if they perform comparable work, even if they have different job titles or work in different offices at a company. The new law also requires that any legitimate, non-gender based factors that employers rely on to explain gender wage differences must be “applied reasonably” and “account for the entire wage differential.” The Fair Pay Act also prohibits retaliation against workers who seek to enforce the Act or who inquire about the wages of other employees. This new law empowers women to challenge unfair pay practices and gives advocates new tools to combat the gender wage gap that has persisted in this state for far too long.

Protecting Reasonable Accommodation Requests

AB 987 was passed in July 2015 to explicitly affirm that workers who request reasonable accommodation based on religion or disability are protected from retaliation under the Fair Employment and Housing Act (FEHA). The legislation was passed in response to a misguided California appellate court’s decision in Rope v. Auto-Chlor System of Washington, Inc. In that case, the employee was fired after requesting a work accommodation so that he could donate his kidney to his ailing sister. The court held that accommodation requests did not constitute a protected activity sufficient to support a FEHA retaliation claim. This decision threatened to overturn years of legal interpretation that protected workers’ rights to request accommodations. With the passage of AB 987, we can now be sure that workers have legal protection if they request an accommodation from their employer due to disability or religion.

Increased Wage Theft Protections

To help combat pervasive wage theft in this state, SB 588 was passed to authorize the California Labor Commissioner to file a lien or levy on an employer’s property to assist employees in collecting judgments for unpaid wages. According to a 2013 report by the National Employment Law Project and the UCLA Labor Center, only 17% of workers who prevailed in their wage claim at the Labor Commissioner’s office were able to receive any payment between 2008 and 2011. Workers who did receive payment were able to collect only 15% of what was owed. The new law also provides that any employer or any person acting on behalf of an employer who “violates, or causes to be violated,” regulations regarding minimum wages or hours and days of work, may be on the hook for wage theft. Workers and their advocates now have significantly stronger tools to go after employers who try to evade liability by shifting responsibility to other companies or by refusing to pay their judgments.

Scrutiny Of Misclassification In Shared Economy Companies

In June 2015, the California Labor Commissioner ruled that a driver for Uber was an employee, not an independent contractor, and ordered the company to pay her back for work-related expenses. In August, the California Employment Development Department determined that a former Uber driver was an employee and was entitled to receive unemployment benefits. Then in September, a federal judge in San Francisco ruled that Uber drivers could proceed as a class action in a lawsuit over whether the drivers should be classified as employees or independent contractors. The class action alleges that Uber failed to pass on tips left for drivers. Although the classification issue for Uber drivers and other similar workers is not yet settled in California, it reflects the willingness of the state’s legal authorities to scrutinize misclassification issues and enforce labor rights in the evolving world of shared economy businesses.

Cost-Shifting To Employees Only If FEHA Lawsuit Frivolous

Previously, employees who lost on their Fair Employment and Housing Act claims could be required to pay the employer’s legal costs. Since these costs could be substantial, workers could be discouraged from trying to vindicate their workplace civil rights out of fear of having to pay if they lost their lawsuit. However, now after the California Supreme Court’s decision in May 2015 in Williams v. Chino Valley Independent Fire District, an employee who loses his or her FEHA claims in a lawsuit will not have to pay the employer’s legal costs on those claims unless the employer shows the claims were frivolous. This new standard can help reduce some of the financial risk for employees seeking to enforce their rights.

These developments reflect our state’s continuing trend of protecting working people, low-wage workers in particular, from exploitation and unfair treatment. Although there’s always more advocacy to be done, we have these positive steps to celebrate for this year.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

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