Mariko Yoshihara ← CELA VOICE

A Mother’s Day gift of job-security

May

8

2016

This Mother’s Day, let’s give moms the gift of job-security for the time they take away from work to bond with their new babies. Just last month, Governor Brown signed into law a bill that would boost Paid Family Leave benefits for parents who take baby bonding leave, but nearly half of all California workers could still be fired for taking the leave and accessing those benefits. Under current law, job-protection for baby bonding leave is only available to parents who work for large companies with 50 or more employees, leaving out over forty percent of the workforce in California.

A legislative proposal currently underway in California, Senate Bill 1166, by Senator Hannah-Beth Jackson, would help ensure more mothers can go back to their jobs after taking up to 12 weeks of baby bonding leave, by extending job-protection to parents who work for smaller companies. The reality is, almost half of the workforce is now women and mothers and fathers are sharing in financial and childcare responsibilities. Without job-protection for new parents, mothers are usually the ones who are forced out of the job market when they would otherwise choose to return after an extended period of leave.

Many other states have already expanded their family leave laws to provide more parents with job-protection when out on leave. Most recently, New York signed a bill that provided paid family leave benefits with job protection for nearly all workers in the state, regardless of the size of their employer. In Washington DC, all employees have 16 weeks of job-protected leave. In Maine, workers at companies with 15 or more employees have 10 weeks of job-protected leave; Massachusetts provides 8 weeks of job-protected leave for workers at companies with 6 or more employees; Minnesota offers 6 weeks of job-protected leave for workers at companies with 21 or employees; and Oregon provides 12 weeks of job-protected leave for workers at companies with 25 or more employees.

Opponents of SB 1166 argue that the proposed measure would “kill jobs” and “unduly burdens and increases costs of small employers.” These fear-based, sky-will-fall arguments have no basis. In 2004, the National Federation of Independent Business conducted a poll of small businesses that contradicts the “undue burden” narrative. The average number of requests for leave is only one per year. Two-thirds of the small businesses did not receive a request for leave at all in the prior three years. When asked about the principal problem caused by the employee’s absence, the most frequent response was “no real problems.” A 2012 national survey of employers conducted by the Department of Labor also found that small employers were less likely to report problems with family leave than were large employers and that fewer than 10 percent of employers reported problems with productivity, absenteeism, turnover, profitability, career advancement, or morale because of family leave.

At last month’s bill signing ceremony raising California’s minimum wage, President pro Tem Kevin de León said, “When it comes to taking care of working families, mark my words, California leads the nation…the rest of the country looks toward California for leadership on this issue.” It’s time for California to make good on its promise to working families – to provide not just higher paid leave benefits, but an assurance that their job will be there when they need it the most.

In addition to signing your Mother’s Day cards today, please sign this petition in support of SB 1166, because no mother in this state should have to choose between caring for a child and keeping a job.

The Fair Scheduling Act: Get the facts

Jun

3

2015

Via Twitter: @ChelseaRosario_

Over the past few months, the Chamber of Commerce and its Big Business allies have mounted an all-out war against AB 357, the Fair Scheduling Act of 2015, by Assemblymember Chiu and Assemblymember Weber. AB 357 is a bill that would simply ensure that workers are provided with fair and predictable work schedules so that they can manage their lives and other commitments, like second jobs, school, family care, or medical appointments. As more employers move to “just-in-time” scheduling, which gives workers little to no notice of what days or hours they’ll be working, the need for AB 357 is abundantly clear, which is why dozens of labor, civil rights, anti-poverty and women’s groups all support this bill.

Yet, as the bill moves to a floor vote in the Assembly this week, opponents of the bill have been bombarding legislators and news outlets with misleading information and “sky is falling” rhetoric designed to confuse legislators and alarm small businesses in the state. Don’t be fooled.

First, this bill only applies to very large food and retail establishments — those with 500 or more employees in the state and 10 or more establishments in the United States — large corporations with extensive resources. In fact, these are the corporations that created the advanced computerized scheduling algorithms that have put workers’ schedules in constant flux in order to maximize profitability.

The Chamber claims that the bill would penalize employers who make changes to a work schedule with less than two weeks’ notice of the scheduled shift. This is false. Additional pay is only required if a change is made with less than one week’s notice. The penalty for short scheduling is only one hour of additional pay, unless the change is made within 24 hours of the scheduled shift, in which case the extra pay varies between two and four hours of additional pay, depending on the length of the shift. Considering the havoc this type of erratic scheduling wreaks on workers juggling multiple jobs and families, this is hardly a severe penalty.

They also claim that this bill denies employees the opportunity to pick up additional hours at the last minute. This, too, is false. The bill contains numerous exceptions that allow for flexibility. For example, the bill would not apply if another employee is unable to work because of illness, vacation, or time off or if an employee trades shifts with another employee or requests a change in his or her shift.

Opponents argue that the bill would tie the hands of store managers in their ability to deal with unforeseen circumstances such as changes in weather, a product delivery date or a product launch. The bill explicitly provides exceptions for situations like public utilities failures or acts of God. Product delivery dates or product launches, on the other hand, are circumstances that large retailers know about well in advance. Nothing prevents them from making necessary scheduling changes with adequate notice to its workers.

As a last ditch effort, opponents clamor for more time to assess how San Francisco’s fair scheduling ordinance will work. For the thousands of workers whose schedules change daily, the time to act is now. In fact, a unified statewide policy would benefit both retailers and workers in California. Otherwise, retailers will have to deal with a patchwork of local laws as other cities follow in San Francisco’s footsteps.

It is time to set the facts straight on AB 357. Scheduling fairness has been a core, fundamental principle of this state since the establishment of the eight-hour day and forty-hour work week.

Even in 1999, when the legislature passed AB 60, which codified California’s overtime requirements, the Chamber of Commerce opposed the bill, stating that “employers should be able to work employees 10 or 12 hours a day, without the penalty of overtime if competitive forces necessitate such work schedules.”

We cannot buy in to the same old arguments. In the same way overtime laws affect employer scheduling practices – by imposing a premium or penalty on an employer for using overtime labor– and to compensate employees for the burden of a long week, AB 357 would impose a premium on an employer for last-minute scheduling changes. The power dynamic between employer and employee is already skewed in favor of the employer. Compensating employees for the burden of an erratic schedule is just a small incentive for employers to plan ahead so employees can do the same.

AB 357 is about fundamental fairness and recognizing that, like with our overtime laws, maximizing profitability for large businesses should not come at the expense of our working families.

Three California bills to support this Equal Pay Day

Apr

14

2015

By Mariko Yoshihara

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

Apr

3

2015

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.

We need “peace” officers! It’s time for crisis intervention training

Nov

11

2014

In a recent article published on the popular online magazine, Truthout, CELA VOICE blogger and police misconduct lawyer, Jim DeSimone, explains why police officers need to be properly trained in order to avoid unnecessary use of force against individuals, especially those who have disabilities. In most jobs and occupations, safety training is provided to avoid injury to employees and customers. When employers intentionally fail to provide proper safety policies and training to avoid injury, or ignore obvious accommodations to an individual employee or customer, the companies or government entities can be held liable for substantial sums to compensate the injured party. Jim shows how inadequate police training has led to unnecessary death or injury and the resulting costs to the families involved as well as taxpayers.

Read the full article here: “We Need “Peace” Officers! It’s Time for Crisis Intervention Training” (more…)

Despite losses in Congress, workers gain ground in state and local elections

Nov

5

2014

By Mariko Yoshihara

Although the Republicans had a sizable victory in last night’s midterm elections, and even picked up a few seats in the California state legislature, workers in California and across the U.S. scored some major victories. The Republican gains in Congress will surely spell doom for Democrat-led efforts to advance workers’ rights at the federal level, like banning forced arbitration, raising the federal minimum wage, and providing paid sick days to workers, but as we saw last night, states, cities, and counties are moving ahead on their own to serve the needs of workers.

For example, four states last night — Alaska, Arkansas, Nebraska and South Dakota — all voted to increase their state minimum wage. Proving that the minimum wage is not a partisan issue, voters in these four deeply conservative states approved the measures by sizable margins. Two-thirds of voters in Arkansas, Walmart’s home state, approved a $2.25 wage increase to set a $8.50 per hour minimum. Alaska will increase its minimum wage to $9.75 over the next 14 months and Nebraska will raise its minimum wage to $9 by January 2016. South Dakota approved a minimum wage increase to $8.50 next year that will increase annually to match inflation. With Tuesday’s victories, 17 states have now opted to raise the minimum wage since just last year.

Two cities in California also voted to raise their local minimum wage. Oakland will boost its minimum wage to $12.25 next year and San Francisco will gradually increase its minimum wage to $15 by 2018. Eureka was the only minimum wage measure to fail in last night’s election. Meanwhile, Illinois and several counties in Wisconsin pushed the issue forward by approving non-binding referendums calling for minimum wage boosts. According to Economic Policy Institute, an estimated 680,000 low-wage workers will be getting a raise based on last night’s results.

Workers also scored major wins for paid sick days last night. Voters in Massachusetts and the cities of Oakland, California and Montclair and Trenton, New Jersey approved measures to provide paid time off for workers who are sick or need to care for family members. In Massachusetts, workers in companies with over 10 employees can earn up to to five paid sick days a year, and those who work for smaller companies will be eligible for unpaid sick days. In Montclair and Trenton, New Jersey, workers who provide food service, child care or home health care, or who work for companies with 10 or more employees, can earn up to 5 days of paid sick leave each year. All other employees have access to three paid sick days. In Oakland, California, workers in companies with more than 10 workers can take up to nine sick days a year, and, in smaller companies, up to five paid sick days. Oakland’s new law will provide up to three times as many paid sick days as the new California law that was passed this year, which provides only 3 days of paid sick days. After last night’s results, three U.S. states and sixteen cities have now passed paid sick days legislation, including two states and ten cities in this year alone.

The growing efforts by state and local governments to move this kind of legislation forward reflects the electorate’s dissatisfaction and frustration with a Congress that fails to act. However, despite the widespread support of these efforts by voters on both sides of the aisle, as we saw last night, much of the country still sides with GOP candidates who are fundamentally opposed to these exact issues. Will Republican lawmakers from Alaska, Arkansas, Nebraska and South Dakota, now support a national minimum wage increase? Probably not. Unfortunately, politics is much more than just casting votes based on the views and needs of your constituents.

Now that Republicans control both houses of Congress, it is almost certain that the national workers’ rights agenda will continue to go nowhere. Until we see a change in power in Congress or the Republicans decide to listen to the majority of their constituents, we will have to count on state and local governments to work past partisan gridlock to address the needs of workers.

This Halloween, no more tricks on pregnant women 1

Oct

31

2013

By Mariko Yoshihara and Jean Hyams

As our children spend today dressed up in costumes, carving pumpkins, and eating way too much candy, let’s take a moment to celebrate the moms who created all those lovely trick-or-treaters.

On this day, 35 years ago, President Jimmy Carter signed the Pregnancy Discrimination Act into law, recognizing the pervasive threat of workplace discrimination to the health, safety, and economic security of pregnant women and their families.

Before the PDA, employers could legally fire or refuse to hire pregnant women. Indeed, employer policies that discriminated against pregnant women were upheld by the courts because pregnancy was regarded as “a voluntarily undertaken and desired condition.”

The PDA finally addressed this sexist line of thinking (and notably with bipartisan support) by amending Title VII to clarify that sex discrimination in employment includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.

Thirty-five years later, pregnancy discrimination complaints are still on the rise. From 1992 to 2011, the U.S. Equal Employment Opportunity Commission (EEOC) reported that pregnancy discrimination complaints increased by 71 percent, particularly among low-wage earners and women of color.

While some of the rise in complaints may be due to the fact that more women are in the workforce, significant injustice persists because many employers refuse to provide reasonable accommodations to pregnant women. As a result, women are still being forced out of the workplace to avoid putting their health and the health of their babies at risk.

The Pregnant Workers Fairness Act (H.R. 1975/S. 942), sponsored by Representative Jerrold Nadler (D – N.Y.) and Senators Robert Casey (D – Pa.) and Jeanne Shaheen (D – N.H.), would help strengthen the PDA by ensuring that employers provide reasonable accommodations to those pregnant women who want to continue working.

The Pregnant Workers Fairness Act is a chance to make clear that Congress wasn’t playing a trick on our nation’s mothers when it promised non-discrimination based on pregnancy. With “family values” a guiding maxim on both sides of the aisle, Congress should act now to protect the health and financial security of our nation’s mothers.

New laws to advance workers’ rights in California: the 2013 legislative round up 2

Oct

24

2013

By Mariko Yoshihara

Now that the dust has settled after a flurry of action from the Governor’s office to meet this year’s bill signing deadline, it’s time to take stock of how workers fared during the 2013 legislative year. Although there were some challenges and setbacks, on balance, the California Employment Lawyers Association (CELA) and its many allies made some great progress in advancing the rights of California workers.

To start, the Governor signed several significant bills this year to help boost and protect the earnings of low-wage and immigrant workers. After years of stagnation and prior unsuccessful attempts, the state minimum wage will finally see an increase after the approval of AB 10 (Asm. Alejo). Even the Chamber of Commerce’s ignoble “job killer” list did not stop the Governor from signing AB 10 into law. The new law raises the $8 an hour minimum wage to $9 an hour, effective July 1, 2014, and from $9 an hour to $10 an hour, effective Jan. 1, 2016.

Domestic workers will also see a boost in wages after scoring a historic victory with AB 241 (Asm. Ammiano), known as the Domestic Workers Bill of Rights. After a disappointing veto last year on a similar bill, the Governor’s approval of AB 241 was a significant step forward for the Domestic Workers campaign, which has roots all across the nation. This law mandates overtime compensation for domestic workers in California who work over 9 hours in a day and over 45 hours in a week.

Bills to protect wages were also a highlight of this year’s legislative session. SB 496 (Sen. Monning), signed by the Governor this year, makes it easier for workers to pursue a claim for unpaid wages by eliminating the threat of potentially ruinous liability if they ultimately do not succeed on their claim.

Carwash workers cemented some much-needed protections by eliminating the sunset date on one of the most effective tools for combating wage theft in the car wash industry. AB 1387 (Asm. Hernandez) now permanently requires car washes to register and obtain a bond to fund an account for car wash workers who cannot collect their wages.

The Fair Paycheck Act, which would have helped all workers collect their unpaid wages, unfortunately suffered a defeat this year due to heavy lobbying by special interest groups in big business and banking. This bill would have authorized an employee to record and enforce a wage lien upon an employer’s property. Though unsuccessful, the Fair Paycheck campaign, led by a broad coalition of low wage worker advocates, will continue to rebuild as sights are set on another legislative attempt next year.

Two major victories scored this year were the signings of AB 263 (Asm. Hernandez) and SB 666 (Sen. Steinberg), a pair of bills aiming to protect and promote the rights of immigrant workers who suffer from pervasive abuse in the workplace. These bills help workers assert their rights by clarifying that retaliation protected under Labor Code 98.6 broadly includes any adverse actions (including threats of deportation). Additionally, these bills clarify that workers do not have to go through the cumbersome process of filing administrative complaints unless the Labor Code expressly requires it. Another immigrant workers’ rights bill signed this year, AB 524 (Asm. Mullin), makes it a crime for employers or their attorneys to use threats of deportation to exploit immigrant workers.

Whistleblowers also receive some added protection under SB 496 (Sen. Wright), which expands Labor Code 1102.5 to cover workers who are preemptively fired before they can report any wrongdoing and to cover a broader range of disclosures.

Proposals to strengthen the state’s family care laws met heavy opposition this year, with only one of three bills even making it to the Governor’s desk. SB 404 (Sen. Jackson) and SB 761 (Sen. DeSaulnier) – both labeled “job killers” by the Chamber of Commerce – stalled in committees. SB 404 would have prohibited discrimination against workers who care for their family members and SB 707 would have provided job protection for workers taking paid family leave. Unless they are lucky enough to work for an employer that is covered by the California Family Rights Act, workers who take paid family leave are still at risk of being fired for taking the leave.

SB 770 (Sen. Jackson) was the lone family care bill signed by the Governor into law. This bill expands the Paid Family Leave Program to provide wage replacement for workers taking care of seriously ill grandparents, grandchildren, siblings, and parents-in-law.

With the exception of one, the Governor signed several bills to help strengthen our workplace anti-discrimination and anti-harassment laws. The lone defeat was SB 655 (Sen. Wright), a bill backed by a broad coalition of civil rights organizations in response to a California Supreme Court decision that undercuts the remedies available to victims of discrimination under the Fair Employment and Housing Act (FEHA). SB 655 would have provided guidance in the enforcement of discrimination and retaliation claims under the FEHA and would have provided compensation for victims of discrimination and retaliation in certain kinds of cases.

The Governor did sign a couple of bills to expand workplace protections for veterans and those in the military, AB 556 (Asm. Salas), as well as for victims of domestic violence, SB 400 (Sen. Jackson). Significantly, SB 400 not only prohibits discrimination against victims of domestic violence, it also requires employers to provide victims with reasonable accommodations. The Governor also approved SB 292 (Sen. Corbett), which strengthens sexual harassment protections, particularly with same-sex harassment, by clarifying that harassing conduct need not be motivated by sexual desire.

Former offenders will also find some added protections and help securing employment with the approval of AB 218 (Asm. Dickinson). As part of the nation-wide “ban the box” campaign, this bill has gone through many iterations and defeats in the past. Years in the making, this new law prohibits state and local agencies from asking an applicant to disclose information regarding a criminal conviction until after the agency has first determined whether the applicant meets minimum qualifications for the position.

All of the bills signed this year will take effect January 1st of 2014. And as we look at what new changes lie ahead, it’s clear to see that together we achieved considerable success on behalf of workers and working families in California.

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