Thinking “outside the box” means “banning the box”



By Christian Schreiber

Last month the U.S. Supreme Court again refused a request by Governor Jerry Brown to stay a Ninth Circuit decision ordering the release of 9,600 inmates by the end of the year.

In spite of the decision, no reasonable person believes the streets will be teeming with violent criminals on New Year’s Day.  What is certain, however, is that the ranks of California’s unemployed will swell with those former prisoners, as those released will join thousands of other “ex-cons” unable to find work because of their past criminal convictions.  While news of sluggish job growth and lingering unemployment cycles through the front pages every few weeks, scant attention is paid to the legal obstacles placed in the path of thousands of would-be workers who have been convicted of a crime.

Momentum has been building to address at least one of those obstacles – the dreaded “paper screen” intended to ferret out applicants with criminal records.  Governor Brown’s signature on Assembly Bill 218 placed California among a growing list of jurisdictions that are “Banning the Box.”

Ban-the-Box initiatives were originally pushed by formerly-incarcerated people.  They believed that by eliminating the kind of “check the box”-type question —  “Have you been ever been convicted…” — from employment applications, they might be given a fair opportunity to prove their worthiness for the job.  Now employers, including most recently Target, are seeing the wisdom of the approach.

Help for former prisoners re-entering the workforce is long overdue.  The United States leads the world in incarceration rates, and California ranks at or near the top of every list measuring the number of individuals in federal or state prison, local jails or under supervised release.  According to the Department of Justice, Bureau of Justice Statistics, incarceration rates have fallen slightly the last two years, meaning more former prisoners are re-entering the work force each year.

Ban-the-box legislation is just the first step, but it’s an important one.  In the absence of legal protections, what former prisoners face can barely be distinguished from Jim Crow.  Individuals with past criminal convictions face discrimination that is not only common, it’s effectively encouraged.  No group continues to be discriminated against so openly, with base racial prejudices endorsed at the highest levels.  Supreme Court Justice Antonin Scalia no doubt speaks, albeit in code, to these unconscious racial fears many people have about the release of any inmates—whom he describes as “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia’s myth of a super-criminal appears to have more in common with his taste in TV or literature than it is does in reality, where nearly a third of released prisoners are over 40.  But he’s hardly alone.

Few constituencies are more marginalized than former prisoners.  Our willingness to dehumanize former prisoners ignores the simple fact that the only difference between “them” and “us” is that they got caught while we got jobs, and get to keep them.

Stories of redemption are easy to find, though countless others we don’t hear about break the other way.  It’s time we treated ex-offenders individually and on their own merits so that redemption can become the rule, and not the exception.

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.

I Heart Kozinski

I Heart Kozinski

Justice Alex Kozinski

By Wendy Musell

It’s not every day that I profess my adoration for a public official so, well, publically. Especially not for a sitting Ninth Circuit Court of Appeals Judge who is often called conservative.

But I heart Kozinski.

It’s not because of his reportedly big personality, his colorful turn of a phrase, or his willingness to take on controversial topics. I must confess; I often disagree with his politics and his findings.

It’s that he gets it.

At least he gets it when it comes to the critical importance of vigorous discovery in civil cases to plaintiffs . . . now that he’s involved in a consumer class action suit against Nissan Motors.

What made this otherwise conservative judge see the light? It turns out that Judge Kozinski is unhappy with his attorney’s failure to delve into Nissan’s alleged illegal behavior before entering in what Judge Kozinski suggests is a “sweetheart” settlement deal in Klee, et al. v. Nissan North America, Inc., a class action on behalf of Nissan Leaf car owners for warranty and alleged battery defects. He was so enraged with his attorney’s failure to delve into the knowledge of Nissan regarding these alleged defects before selling the vehicles to consumers that he filed a pleading asking the Judge to deny court approval to the proposed settlement. In his thirty page opposition, he (and his wife) passionately made the case that “extensive” and “vigorous” discovery is needed to demonstrate liability of corporate defendants.

After deriding his high-powered attorneys for failing to obtain evidence that would be necessary to prove liability at trial (learn what is the asbestos attorney strategy), such as internal memos, emails, incident reports and prior complaints, Judge Kozinski wrote: “it’s the job of the lawyers suing to find out everything the company knows and hopes to conceal.”

Judge Kozinski took the words right out of my mouth.

His observation pinpoints the controversy over changes to federal rules now being proposed that would limit discovery in all civil cases, including those involving consumer, employment and civil rights claims, filed in federal courtroom across the country. The proposed changes to the federal rules that govern discovery would cut the number of depositions allowed by half (from 10 to 5) and limit them to six hours each. Documents requests are slashed imposing a limit of only to 25 requests; interrogatory requests from 25 to a paltry 15 and admissions having new numeric restrictions of only 25.

The proposed changes, recently submitted by the Judicial Conference of the United States to Congress are now open for public comment. Public hearings, which have already begun, are being held in Phoenix, Arizona on January 9, 2014 and Dallas, Texas

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on February 7, 2014. Public comments received from civil rights, consumer rights, and environmental champions argue that the rules will effectively do away with the discovery needed to enforce laws for the protection of all citizens.

On the other side, comments received from representatives of big corporate interests complain that the cost of discovery is too high, requiring a “trim” of discovery for all cases in federal court.

If these proposed changes to the federal rules of civil procedure take effect, Americans who bring consumer, employment or civil rights claims against large corporate entities will feel Judge Kozinski’s pain. An employee who was wrongfully fired for, say whistleblowing, won’t get to find out very much and certainly not what the company hopes to conceal. Instead, it is far more likely that companies who are intent on doing bad things and firing employees who bring unlawful practices to light will play possum until the meager discovery afforded under the proposed changes are all used up in a game of “gotcha.”

Judge Kozinski’s experience as a class member in a consumer rights case has led him to provide a vivid example of how paramount discovery is to prosecuting cases that that are brought under federal laws enacted to protect the public from false claims or faulty products. Judge Kozinski’s experience demonstrates how important this yawn-inducing technical “fix” to the discovery rules is to the general public. People and their elected representatives should be paying attention too.

[To learn more about how the proposed changes to the Federal Rules of Civil Procedure would harm civil right cases, read Wendy Musell’s earlier blog post, Gaming the system: If you can’t beat em, change the rules.]


Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

Heralding USERRA — the unknown law that protects jobs at home while military members serve

Heralding USERRA -- the unknown law that protects jobs at home while military members serve

military-man-station-6081107By Sarah Schlehr

I am proud to say that my younger brother is a Veteran of the Marine Reserves.  He served two tours of active duty—both in Iraq.  Being a Marine is part of his identity and something he will wear as a badge of honor through his life.

My brother signed up for the Marine Reserves shortly after 9/11.  While I personally did not support our invasion of Iraq, I always supported our troops and personally witnessed the commitment and passion of my then 19 year old brother in wanting to protect our country’s freedoms.

At the time of his first call to duty, my brother was just 22.  He worked a full-time job at a grocery store in the Midwest.  Although I make my living representing employees in legal disputes with employers, his was my first experience with the ways employers, whether knowingly or through ignorance, violate the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Though his job paid just over the minimum wage, my brother was on management track and entitled to health benefits.  That is, he was until he notified his employer that he had been called to active duty for service in Iraq.

Shortly before my brother left for Iraq, his manager called him into his office and had him sign a paper stating that he was being reduced to part-time hours, but that he would be eligible to return to full-time status if and when he returned.  Unhappy with this demand, but also preoccupied with his impending departure to active military service and unfamiliar with his rights under USERRA, my brother signed the paper and left.

After sharing his frustration with others more knowledgeable about the law, he went back to the store, and asked to see the paper that he had signed.  He then tore it in half.  His stunned manager asked him if he was walking out of the job.  My brother responded “No, I’ll be back in about a year,” and left for Iraq.

It is shameful that so many military service members are uninformed about their rights under USERRA, the federal law designed to protect their civilian jobs, and to ensure their re-employment after deployment.  Ignorance of the law appears to be rampant. And despite efforts by both the Department of Labor and the Department of Defense to educate employers on their obligations under USERRA, complaints by service members are on the rise.

USERRA requires employers to provide service members time off to serve in the military and to restore them to their jobs promptly when they return from duty.   Importantly, it also requires the employer to continue medical coverage for service members and their dependents through any employer-based health plan for up to 24 months and prohibits discrimination and retaliation against service members.  In my brother’s case, the employer’s attempt to move him to a part-time position could have impacted his entitlement to coverage during his tour of duty.

It is impossible to determine the actual number of USERRA violations because there is no central collection point for reporting claims. And some service members, like my brother, may never formally complain.  However, we do know that complaints filed with the Employer Support of the Guard and Reserve (ESGR), an agency within the Department of Defense, and through the Veterans in Employment and Training Service (VETS), an office within the Department of Labor rose between 2010 and 2011, the most recent years for which numbers are currently available.

The Defense Department’s ESGR attempts to informally resolve service members’ complaints through the use of volunteer ombudsman.  During FY 2011, the most recent year for which numbers are available, the ESGR mediated 2,884 USERRA cases.  Over 1500 of them involved problems with job reinstatement and reemployment. Although instructive, these numbers don’t tell the whole story since there is no requirement that employees complain to the ESGR nor are they required to participate in mediation.  At the same time, the Department of Labor VETS program reviewed 1,548 new unique USERRA complaint cases, up 8% from the previous year.

These numbers do not tell the whole story.   Many service members are unaware of their rights under USERRA.  Even those who know about USERRA may be reluctant to pursue legal recourse.  Those who do pursue their rights may utilize legal avenues outside of the ESGR and VETS.

Fortunately, my brother came home from Iraq safely and was able to return to his job.  When he returned, he went back to the same store and manager and experienced no serious repercussions or retaliation.  He still isn’t sure if his former employer was intentionally violating the law or just ignorant of its protections.

But not everyone is so lucky.  Much more needs to be done to educate both employers and service members of their employment rights, to track violations, to punish violators, and to provide redress.  Surely, that’s the least we can do to repay the sacrifices made by  the men and women protecting our country.

Sarah Schlehr

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

Wedding bells ring at West Point

Wedding bells ring at West Point

Library of Congress, Prints & Photographs Division, HABS, Reproduction number HABS NY-5708-20-2By Elizabeth Kristen

Now that “Don’t Ask Don’t Tell” and the “Defense of Marriage Act” are history, wedding bells are ringing at West Point for same-sex couples. A little over a week ago, Daniel Lennox and Larry Choate III, both West Point graduates, exchanged their vows in the historic West Point Cadet Chapel, following in the footsteps of lesbian couples who married at West Point late last year.

In 2011, the military issued a memo allowing military Chaplains to perform same-sex weddings on and off base.  In August of this year, the military began trying to make it easier for service members to take time off to marry their same-sex partners.  Defense Secretary Chuck Hagel said the goal of the policy was to “help level the playing field” for same-sex couples. Under the new policy, service members in the continental United States who are stationed more than 100 miles from a place that allows same-sex marriages could take up to seven days off to travel to a place to marry.  Service members overseas can take up to 20 days off for the same reason.  Most important to the new “level playing field,” the newlywed spouse of the service member then becomes eligible for a host of important benefits such as health care, tuition assistance and joint assignments.

Some of the service branches have issued guidelines to make it easier for service members to take advantage of this policy.  The Marines led the way and, more recently, the Air Force has issued directives allowing service members to take time away from work to travel to same-sex marriage states to wed.

The work of equality is not done.  Some service members still report difficulty accessing the leaveTransgender men and women still must hide their true identities or face discharge.  Members of the LGBT community still face discrimination and harassment.  But there is also little doubt now that real change is underway, and allowing service members to marry their same-sex partners is an important step towards the freedom and equality those who serve in our military risk their lives to protect.


Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

Something to celebrate this Veterans Day

Something to celebrate this Veterans Day


By Elizabeth Kristen

With the largest population of veterans of any state in the country, California has an extra reason to celebrate this Veteran’s Day.  Just last month, Governor Brown signed a new law that will prohibit employment discrimination and harassment in California based on military and veteran status.

Effective on the first day of 2014, AB 556, sponsored by Assemblymember Salas of Bakersfield, amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating on the basis of military or veteran status or the perception of such status.

Lawmakers were motivated to change the law by the unacceptably high unemployment rates of California veterans.  The Iraq and Afghanistan Veterans of America (IAVA) conducted a survey of their members and found that 24% of them were unemployed.   The Los Angeles Times reported that half of IAVA’s members believed that employers were not open to hiring veterans.

According to the U.S. Department of Labor’s September 2013 unemployment numbers, veterans who have served in the armed forces since September 11, 2001, have an unemployment rate of 10.1%, compared to a civilian unemployment rate of 6.8%.  Broken down by gender, the unemployment rates show that women veterans have a higher unemployment rate (11.6%) than male veterans (9.7%).  Female veterans also have a higher unemployment rate than female non-veterans (6.5%).

While a number of federal and state laws do specifically address veterans’ employment issues and leaves of absence (see upcoming Blog post on leaves for veterans and military families), having specific state-law employment discrimination and harassment protections for veterans can help in a number of ways.  First, the new law will raise awareness of the serious employment problems facing veterans as employers revisit their employment policies, procedures, postings, and training regarding discrimination and harassment.  Second, veterans who experience employment discrimination or harassment will have access to the Department of Fair Employment and Housing, the State agency charged with investigating their claims and filing court cases to enforce the law.  Third, adding additional protections to FEHA means that California employment lawyers will become more familiar with representing and advocating on behalf of veterans.

The new law provides protections to any member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.  The bill still permits employers to consider veteran status for purposes of veteran preferences in hiring, a practice encouraged by the Veterans Administration.

As we salute our veterans for their service, let’s also celebrate the great strides the Golden State is making towards full integration of our veterans as they return to our communities.


Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid at Work.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

“Donning and doffing”: The Supreme Court will decide an issue of great importance to employees required to wear gorilla suits to work (and to other employees with workplace uniform requirements as well)


By Curt Surls

You recently graduated from a private, liberal arts college in a leafy Midwestern town with a B.A. in Medieval Albanian Poetry.  Nevertheless, you found a job straight out of college.  The good news is that your new job pays a living hourly wage, and you are represented by a strong union.  The bad news is that you have to wear a gorilla suit to work.  Further, the collective bargaining agreement between your union and your employer denies you compensation for the time spent changing into and out of your gorilla suit.  Are you out of luck?

Maybe not.  The US Supreme Court is hearing arguments this week in a “donning” and “doffing” case.  “Donning” and “doffing” are archaic verbs used only by labor lawyers and minor Dickens characters.  In legal parlance, you do not “take off” your gorilla suit after work; you “doff” your gorilla suit.

Ideally, you shouldn’t have to do any doffing on your own time.  Under state and federal law, if you are required to change into a uniform or protective gear at the workplace, you are generally entitled to be compensated for that time.  Your gorilla-suit-donning time should be compensable.

But there’s a wrinkle to this rule in the context of a unionized workplace.  Section 203(o) of the Fair Labor Standards Act (“FLSA”) permits a union to bargain away an employee’s right to compensation for time spent “changing clothes” at the beginning or end of the workday.

Since the late 1940’s, the United Steelworkers union has traded its members’ right to be compensated for “donning and doffing” for other benefits.  And that agreement is at issue before the U.S. Supreme Court now in Sandifer v. United States Steel Corporation.

The steelworker plaintiffs in Sandifer have to outfit themselves in a variety of flame-retardant safety-gear before commencing their shifts.  They argue that the union has no right to bargain away their right to compensation for time spent “donning and doffing” the protective gear because they are not “changing clothes” within the meaning of the FLSA.  The term “changing clothes,” they assert, refers to “substituting certain clothes for others, not merely putting on something else” over them.  The union, therefore, cannot bargain away their right to be compensated for time spent wrestling with the Kevlar.  They want to be paid for this time.

The company, with support from the Obama Administration, is arguing for an expansive definition of “clothes,” that would include protective gear, and other accoutrements such as safety goggles and ear plugs.  In other words, US Steel and the government want union and management to have the ability to bargain away the employees’ right to be compensated for the time they spend “donning” their protective gear.

Nonsense, claim the steelworkers, who argue that an expansive definition of “clothes” and “changing clothes” could lead to absurd results.  In an analogy that makes my gorilla suit example seem temperate, the steelworkers question whether an overly-broad definition of “clothes” would include make-up for a KISS cover band or Captain Kangaroos’ wig (that was a wig?!).

In the end, most observers think the US Supreme Court will duck the issue of gorilla suits, KISS make-up and children’s show host hairpieces and adopt the definition of “clothes” proffered by the Department of Labor:  Items like hoods, jackets, gloves, pants, leggings, helmets and boots will be considered “clothes” whether or not they are protective in nature.  Therefore, a union can bargain away the right to compensation for “donning and doffing” those items.

And gorilla suits?  If you’re in a union, and you’re required to wear a gorilla suit to work (admittedly, this may not be a substantial demographic), the Sandifer decision probably won’t affect you; “donning” a gorilla suit would still likely be considered “changing clothes.”  However, workers in dangerous jobs that require extensive safety gear will be watching this case with greater interest.

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.

This Halloween, no more tricks on pregnant women 1

This Halloween, no more tricks on pregnant women

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.

Bring your personal life back into the office 1

Bring your personal life back into the office

By Lisa Peck

“Don’t bring your personal life to the office” is a time worn adage that is simply not possible for a vast proportion of the modern-day workplace.  Today’s employees are challenged to meet their workplace expectations in the face of what are often significant family care issues, as well as being a primary breadwinner.  One reason for this is the influx of women with children into the workplace; less obvious reasons involve society’s changing concept of “family” to embrace multi-generations in one household, non-traditional families, blending of families (or, step-families), same-sex partnerships, and workers of many different stages of life and family circumstance.

As a result, Family Responsibility Discrimination (“FRD”) – employment discrimination based on an employee’s responsibilities to provide care for family members – has gained recognition as a form of workplace discrimination comparable to gender, disability, race, national origin, or religious discrimination.

FRD is not only directed at new mothers.  It rears its head when an employee must care for any aging, seriously ill, or disabled family member, whether it is a spouse diagnosed with Multiple Sclerosis, an aging parent or grandparent showing signs of dementia, a child born with a serious disability who will require lifelong medical intervention, or a sibling seriously injured in a car accident.

Without protection against FRD, these real-life, difficult, and everyday challenges may result in termination of employment, or force employees into a wrenching choice between preserving their livelihood and caring for their loved ones.

FRD is most often recognized when an employer discriminates against an employee because of family care responsibilities, or treats the employee less favorably than other employees based on false assumptions that caregiving responsibilities will impair job performance or lessen job commitment.  FRD also can stem from an employer’s good intentions in trying to “help” an employee’s caregiving responsibilities by taking such actions as decreasing hours, reassigning duties, or reducing job functions.

The law does not consistently recognize FRD as a distinct form of workplace discrimination, but there is recourse for some situations.  Under federal law, the Family & Medical Leave Act (“FMLA”) protects eligible employees who need leave to care for a seriously ill family member. The Americans with Disabilities Act (“ADA”) and the Rehabilitation Act preclude discrimination against a qualified employee based on her “association” or relationship with someone with a known disability. The U.S. Equal Employment Opportunity Commission issued enforcement guidance on FRD, and proactively suggested “best practices” to employers to prevent FRD.  The Employment Retirement Income Security Act (“ERISA”) prohibits employer discrimination against an employee that interferes with his exercise of rights under an employee benefit plan.

California provides similar protections. California’s Family Rights Act precludes discrimination and offers job protection for eligible employees needing time off to care for a seriously ill family member, similar to FMLA protections.  Akin to the ADA’s association clause, the California Court of Appeals in Rope v. Auto-Chlor System of Washington, Inc., (Cal. App 2d, 2013) recognized an employee’s right to seek recourse under California’s Fair Employment and Housing Act (“FEHA”) for association-based disability discrimination.  California offers Paid Family Leave (“PFL”) under its disability benefits program (providing wage replacement to those workers taking leave for family care), and legislation recently passed to enlarge the definition of “family” to include grandparents, grandchildren, siblings and parents-in-law for purposes of PFL.

However, California rejected corresponding legislation to provide job protection to workers who take PFL, and it declined to extend employment discrimination protections under the FEHA to include “familial status.”  In contrast, San Francisco adopted a “Family Friendly Workplace Ordinance” effective January 2014, applicable to all San Francisco City and County employees working for employers with 20 or more city-based employees.  It further gives covered employees the right to ask for flexible or “predictable working arrangements” for their family caregiving responsibilities.

This is the wave of the future. Family care responsibilities affect all kinds of workers: women/men, young/old, single/attached, parents/childless, low/high wage earners, public/private employees, and employers of all sizes and industries.  If you work and you have family, FRD may well affect you and your family at some point in your working life. Grassroots efforts are essential to creating pressure for change.

Our community is made up of families, and FRD protection has long since become a community matter.  So, by all means – bring your personal life to work – and to local, state and national officials – to insure legal protection for everyone.



Lisa Peck

About Elizabeth Peck

Lisa is a partner in the firm of Peck Law, LLP with offices in Salt Lake City, Utah and San Jose, California.  She practices employment, discrimination, and civil rights law. She is a past ambassador for the National Multiple Sclerosis Society, and having been diagnosed with MS in 1996, Lisa remains actively involved in educating the MS community, their caregivers, and physicians about their rights and responsibilities under the ADA and the FMLA.  Lisa splits her time between California and Utah, and she is an avid cyclist, skier, lacrosse player, and surfer.

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

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

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.

Are workplace flexibility laws the wave of the future? 2

Are workplace flexibility laws the wave of the future?

By Sharon Vinick

Flexibility in scheduling  and other alternative work arrangements are crucial tools that enable working families to reconcile work and family responsibilities.  Many industrialized countries, including the United Kingdom and Australia, have enacted laws that guarantee employees the right to ask for flexible work schedules, without fear of retaliation.  These laws also require that employers seriously consider a request for flexible working arrangements, and provide a business justification for any request that is denied.

The Working Families Flexibility Act, first introduced in Congress by Representative Carolyn Maloney and the late Senator Edward Kennedy in 2007, would have  guaranteed American workers the same ability to ask for  work options without fear of retaliation.  Although she keeps trying to pass the legislation into law, the Congresswoman’s vision has yet to take hold.

While  Congress has yet to act,  developments at the state and local level suggest that the tide may be turning in the direction of workplace flexibility.

In June, Vermont passed legislation that gives employees the right to request a “flexible work arrangement” for any reason and requires the employer to consider such a request at least twice each calendar year.  The law, which will go into effect on January 1, 2014, defines a “flexible work arrangement” as “intermediate or long-term changes in the employee’s regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job sharing.”  Once an employee submits a request, the employer must discuss it in good faith and grant the request if it is not inconsistent with business operations.

This month, the San Francisco Board of Supervisors passed the “Family Friendly Workplace Ordinance,” which allows employees to submit a request for an alternative work schedule to better fit their care-giving needs. The ordinance, which is likely to be approved by the mayor, requires that employers meet with employees to discuss requests for flexible work arrangements, and to either grant the request or provide a bona fide business reason for rejecting a request.

While neither the Vermont law nor the San Francisco ordinance  require businesses to grant an employee’s request for a flexible work arrangement, the mere fact that employers are required to consider the requests is a move in the right direction.

Congresswoman Maloney’s Working Families Flexibility Act – version 2013 – is again languishing in committee.  But as worker flexibility laws continue to gain a foothold on American soil, enabling businesses and workers to experience the anticipated benefits in productivity and morale, there is renewed hope for its eventual success.

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.

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