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

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

Sacramento State Capitol of California Building

By Sami N. Khadder

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

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

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

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

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

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

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

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

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

Sami Khadder

About Sami Khadder

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

The myth about sleeping on the job

The myth about sleeping on the job

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

cctv security system

By Hina B. Shah

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

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

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

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

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

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

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

Hina Shah

About Hina Shah

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

The Top Five Wins for Workers’ Rights in 2014

The Top Five Wins for Workers' Rights in 2014

By Sharon Vinick

2014

As the year comes to a close, it’s time for a “Top Five” list.  Interest in “Top Ten” or “Top Five” lists is so immense that psychologists have even coined the term the “Top Ten Effect,” to describe the “bump” that items on such a list receive in terms of sales.  A list of the top developments in employment law may not cause a run on any stores, but policy makers and working people should take note (drum roll please) as we now count down the list of five developments that will change the landscape of employee rights as we enter the new year.

  • No. 5:  New California Law Says Proof of Sexual Desire is Not Required to Win Sexual Harassment Claim

 The California Legislature deserves recognition for a new law that strengthens protection against sexual harassment on the job. For years, employers have tried to defend against sexual harassment claims by arguing that the harassment, although boorish, was not illegal because it was not based upon sexual desire.  This “defense” goes something like this — The boss who “joked” with his female subordinate about hopping over to a motel for the night wasn’t actually attracted to her, so that couldn’t be sexual harassment.  Or as the employer claimed in one infamous case, the ironworkers who hazed a new guy on the crew with threats of sexual violence couldn’t have perpetrated sexual harassment since they were all straight.  Earlier this year, the California legislature took away this excuse when it amended the Fair Employment and Housing Act to specifically provide that “sexually harassing conduct need not be motivated by sexual desire.”  These few short words will provide powerful protection for victims of workplace sexual harassment.  As important, the change reminds employers and the courts that sexual harassment is about abuse of power, not sex.

The California Supreme Court took aim at the hypocrisy of employers who hire and exploit undocumented workers. It has often been noted that low wage workers, regardless of their immigration status, are frequent victims of workplace violations. Undocumented workers, fearful that any complaint regarding a violation of these rights might result in their deportation, are a particularly vulnerable group, which should be supported by providing assistance in dealing with any kind of legal documentation – up to the living will management (learn more at Legal Zebra).  This year, in Salas v. Sierra Chemical Company, the California Supreme Court ruled that an employer who discriminates or retaliates against an undocumented worker can be held liable. While the case limits the damages available to these employees, it does provide that employers who violate the workplace rights of undocumented employees will be held accountable for their actions.

While the phrase “wage theft” has been around for years to describe employers who fail to pay overtime or other wages earned by their employees, a number of cases in 2014 have raised public awareness and built public outrage regarding the all-too-common practice of employers forcing employees to work without pay.  Studies suggest that employers are ripping their workers off to the tune of more than $50 billion annually.

The year began with a high profile wage-theft story from an unlikely quarter with the filing of a class action lawsuit against the Oakland Raiders by one of their cheerleaders, Oakland Raiderette Lacy T. The lawsuit sparked similar lawsuits at four other NFL franchises and, as important, a national conversation about wage theft.   In March, seven class action lawsuits were filed across the country against MacDonald’s on behalf of workers in the fast food franchise restaurants alleging its franchises did not pay employees for all hours worked and forced them to work through breaks. Challenges to wage theft kept rolling throughout the year.  In November, employees of Yank Sing, a high end San Francisco dim sum restaurant recovered a landmark settlement — $4 million in back pay and benefits for “blatant” wage theft in settlement of complaints before the California Labor Commissioner. These high profile lawsuits have increased public awareness of wage theft and their examples serve as a deterrent to future wage theft.

  • No. 2:  National Labor Relations Board Opens the Door for Retail Workers to Organize by Department

The federal administrative agency that oversees labor-management relations also took steps to level the playing field for workers in 2014.  In July, the NLRB issued a decision that makes it far easier for unions to get a foothold in large retailers, including Walmart.  In a case involving Macy’s department store, the NLRB ruled that the United Food and Commercial Workers could organize a subgroup of 41 cosmetic workers at a 150-employee store.  Before this change, unions faced huge challenges because they were required to win storewide votes.  As of 2013, only 4.6% of workers in the retail industry were members of unions, as reported by the Wall Street Journal.   That’s down from more than 6% in 2003.  The UFCW is campaigning to organize retail workers at stores like Bloomingdales, Macy’s, Target and, of course, Walmart.

  • No. 1:  Increases in Minimum Wage for Workers 

Without question, the movement that gained the most momentum this year for workers was the campaign to increase the minimum wage.    President Obama called upon Congress to raise the minimum wage from $7.25 an hour to $10.10 an hour, and signed an Executive Order to raise the minimum wage to $10.10 an hour for new federal contract workers.  Unfortunately, the gridlocked Congress did not act to increase the minimum wage that applies to all workers around the nation. However,  eleven states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Rhode Island, Vermont, and West Virginia) and the District of Columbia did raise their minimum wage.

As of January 1, 2015, twenty-nine states and the District of Columbia will have minimum wages that exceed the paltry $7.25 per hour that workers earn under the federal minimum wage.  The highest minimum wage in the nation is in the District of Columbia, where the minimum wage is $9.50 an hour.  And, by January 1st, six other states (California, Connecticut, Massachusetts, Rhode Island, Vermont and Washington) will have legally mandated minimum wages of at least $9.00 an hour. While significantly more work remains to be done in this area, increases in the minimum wages are a meaningful development for millions of low-wage workers in this country.

So, as the year 2014 comes to a close, let’s toast these advancements for workers and rededicate ourselves to improving the working lives of all employees in the new year.

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.

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

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

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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.

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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