Offshoring Industry Trends Affecting California Employment Law

Offshoring Industry Trends Affecting California Employment Law

By Steve Danz

Businesses around the world are expected to spend nearly $1 trillion dollars on outside IT labor services in 2017. Perhaps this figure does not seem overwhelming on a global scale, but, the implications for employers and employees, on a micro-level, can be jarring and disruptive. Take, for example, the case of the IT department at the University of California at San Francisco (UCSF). Earlier this year, UCSF completed the transition to offshore their entire clinical IT team to an India-based company named HCL, resulting in the displacement of approximately 80 employees. A mere seven months ago, these individuals were gainfully employed. Next thing they know, they are being asked to train their replacements, ultimately culminating in the termination of their employment in favor of their new, ostensibly less expensive, counterparts.

What is striking is how pernicious this trend has become. In this case, this “organizational solution” was implemented at UCSF, a public nonprofit educational institution, who could not reasonably defend such a decision by borrowing the tired line used by for-profit companies that the move was in the “best interests of the shareholder and the bottom line.”  According to UCSF, the move will save nearly $30 million annually and will curb clinical-side IT costs that have nearly tripled between 2011 and 2016. In reality, the $50 million dollar contract would send the majority of the work to India and bring foreign IT staff to the UCSF campus on H-1B Visas.

Aside from the privacy and security concerns resulting from offshoring IT services, there are numerous business and employment law related concerns.  For instance, many large corporations are merely “shells” and offshore every job that does not interface with customers.  This makes it more difficult to bring a breaching or harmful company to court, and may even curtail enforcement from certain agencies such as the California Labor and Workforce Development Agency and the U.S. Department of Labor.  Our court system and laws have a storied history of protecting California workers.  Permitting companies to contract their labor with the ability to simply terminate a contract, or to instantly disappear altogether, is unacceptable.

When the lines are blurred between employment and contract labor, it not only affects our American tax system by giving reprieve to unscrupulous corporations, it also destabilizes and disenfranchises the American workforce.

The legislature must ensure that these companies are held accountable for how they pay and treat their workers.  This may mean creating new laws to govern these types of contracting industries.  We could look north of the border for an example where Canadian laws permit a third, legally recognized category known as “dependent contractor.”  This worker is economically dependent on, and subject to the control of, one principal employer, but uses his or her own tools and may expect a profit from the services provided. In return, an employer must give the dependent contractor reasonable notice of termination and the dependent contractor can sue the principal similar to how an employee may sue the employer.

The Protect and Grow American Jobs Act, introduced by Darrell Issa, a California Republican, and Scott Peters, a California Democrat, aims to curb the outsourcing of American jobs by reforming the nation’s high-skilled immigration program and helping to adjust the requirements in the issuance of H1-B Visas.  One way that the bill may encourage U.S. based companies to hire American workers is by increasing the minimum salary for foreign workers under the H-1B visa program from $60,000 to $100,000.  This will unquestionably help when companies are considering hiring an American worker versus a foreign worker.

There may still be time to save American jobs.  California’s legislature, as it usually does, should take the lead in protecting our local economy by introducing similar legislation and fighting for the employees, before it is too late.

Steve Danz is senior partner and chief trial attorney at Stephen Danz & Associates. He represents plaintiffs in wrongful termination, discrimination, disability, wage and hour class actions, and false claims act whistleblower litigation in partnership with the Department of Justice.

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Why California needs stronger parental leave policies

Why California needs stronger parental leave policies

By Menaka Fernando

At first glance, a cultural shift appears to be occurring in the country when it comes to parental leave. In the past year, companies like Facebook, Microsoft, Accenture and Netflix have instituted generous paid parental leave policies that give parents the ability to take time off from work to bond with a new child. However, while paid parental leave may be becoming more accessible to high-wage earning professionals, it remains impossibly out of reach for many workers who risk losing their job if they take any time off after having a new child.  It’s worth noting that Netflix’s parental leave policy glaringly excluded low-wage workers from its benefits.

Last week, Senator Hannah-Beth Jackson (D-Santa Barbara) unveiled a new legislative proposal that would dramatically improve access to parental leave for all California workers by addressing one of its biggest barriers — job protection.

The reality is the patchwork of existing protections for workers who need to take parental leave are woefully inadequate. The California Family Rights Act and the federal Family and Medical Leave Act provide 12 weeks of unpaid leave and job protection, but these laws only cover employees who work for larger companies with 50 or more employees. This leaves over 40% of California’s workforce ineligible for job-protected leave because their employer is too small.

Because nearly half of the workforce is not covered by our family leave laws, employers can punish workers for taking time off to care for a new child.  As a workers’ rights advocate, I often hear stories of employees – particularly low-wage earners – whose careers are slow-tracked, whose hours are restricted, or who are simply fired for taking or even requesting family leave.

Even more troubling is that workers without job protection are unable to take advantage of the state’s Paid Family Leave (PFL) program, which provides partial wage replacement benefits for those who take family leave. Studies have shown that low-wage workers who qualify for these benefits often cannot use them even though they pay into the program.  A 2011 Center for Economic and Policy Research study of the PFL program showed that the ability to use parental leave is far greater for salaried employees (mainly managers and professionals) and high earners (those earning over $20 per hour plus employer health insurance) than for those in hourly and low-quality jobs.

In the same study, 37% of respondents expressed concern that if they took PFL, their employer would be unhappy, their opportunities for advancement would be affected, or they might simply be fired. At a time when financial security and healthcare coverage are so important, the risk of losing one’s job to take leave to care for a new child is simply a risk that many new parents cannot afford to take.

Senator Jackson’s bill would alleviate that risk by extending parental leave rights for new parents (including domestic partners and adoptive or foster parents) who work for employers with 5 or more employees.

The need for expanded and equitable access to parental leave in the state cannot be understated.  The benefits of parental leave on the health and welfare of the economy and our state’s working families have been well-documented.  Research shows that paid family leave, particularly when there is job protection, increased new mothers’ wage growth and future employment rates.  Fathers who take parental leave are more engaged with their newborns, promoting greater gender equity at home and at work. In addition, evidence strongly suggests that children enjoy many short- and long-term benefits from parental leave including better health and  higher high school graduation rates.

While it is encouraging that good corporate policy is pushing the conversation on parental leave forward, it’s time for the Legislature to act. The protections of Senator Jackson’s bill will help ensure the physical, psychological, and economic health of all of California’s working families, and not just Silicon Valley executives.

Menaka Fernando is an associate attorney at Outten & Golden LLP, where she represents individual employees in litigation and negotiation, and a member of the California Employment Lawyers Association.

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Valuing fatherhood in the workplace

Valuing fatherhood in the workplace

Nurse

By Sarah Schlehr and Mariko Yoshihara

This Father’s Day, let’s do more than just celebrate our dads with Hallmark cards and backyard barbecues.  Instead, let’s give our dads something they really need – flexible workplace policies.

It can’t be surprising that the increase of women in the workforce, coupled with laws that discourage fathers from taking leave, has created a cascade of domestic stresses.  While women still bear a disproportionate share of the domestic work despite also working outside the home, working fathers now report feeling more work-family conflict than working mothers do.  The irony of this conflict is that fathers are actually prevented from sharing some of the burdens (and joys) of family life because they are saddled by Leave It To Beaver-era parental leave laws.

The good news is, change appears to be on the horizon.  This April, Massachusetts became the first state to require all but the smallest employers to provide fathers with unpaid job-protected leave for the birth of a child.  The law, renamed from the Maternity Leave Act to the Parental Leave Act,  requires businesses with at least six employees to cover dads as well as moms.  The expanded coverage is a much-needed first step in recognizing the universal need for fathers to spend time and bond with their newborn children.

A 2007 study found that fathers who took two or more weeks of leave after a child was born were more likely to perform certain daily child care tasks, like diapering, feeding, and bathing later on.  Fathers who took less than two weeks of leave were no more involved than those who took no leave at all.

Despite the clear benefit of taking time off to bond with a new child, fewer and fewer businesses are offering leave benefits to fathers and research has shown that those who do take leave face a significant stigma in the workplace (let’s not forget the New York Mets baseball player, Daniel Murphy, who was criticized when he took three days off for the birth of his child).

According to a recent study, most fathers only take between one and two weeks off after the birth of a child and the length of time off was closely tied to how much of the leave was paid.  Luckily, California is one of the few states that offer paid leave to parents.  And it’s no surprise that since the program was implemented, the percentage of “bonding leaves” claimed by men has gone up from 18.7 percent in 2005 and 2006 to 31.3 percent in 2012 and 2013.

Unfortunately, many fathers, especially low-income fathers, cannot take advantage of paid leave because their employers are too small to be covered by a law that would provide the new dads with job protection.  Most fathers simply cannot risk losing their job, especially after the birth of a new child.  Leaving aside the lucky Massachusetts dads, the only fathers who can access job-protected leave are those who are covered by the Federal Family and Medical Leave Act (FMLA) or a state law corollary.  But these laws leave a lot of fathers out in the cold since they only cover employees who work for companies with 50 or more employees and who have worked there for at least a year.

Incremental change may be on the way in California, where advocates for working dads (and moms) are pushing to increase the boundaries of who is covered by the California Family Rights Act, California’s corollary to the FMLA.  California’s SB 406, the legislation that would amend the law, does not go as far as the Massachusetts parental leave law.  But it does propose to expand leave rights to workers at smaller businesses, by lowering the employee threshold from 50 or more employees to 25 or more.

While SB 406 and the Massachusetts law are certainly steps in the right direction, both still lag far behind what other countries provide for their fathers.  For years, Sweden has had a generous parental leave policy of 16 months that could be shared by the mother and father.  Beginning in 1995, Sweden introduced a “use it or lose it” policy that reserved one month specifically for dads.  This was increased to two months in 2002 and will increase again to 3 months in 2016.  Some countries, like Chile, Portugal, and Italy, go so far as to make paternity leave compulsory, to help ensure that fathers share childcare responsibility with mothers.

It’s time for California and the rest of the United States to catch up and show that the job of parent is at least as important as the jobs parents perform for their employers.

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.

Religious freedom comes of age in corporate America

Religious freedom comes of age in corporate America

Abercrombie

By Alan Reinach

Religious minorities have always been at the forefront of pushing religious freedom in American law. This year is no different, as Samantha Elauf, a young Muslim woman, won a critical case on behalf of all who seek workplace accommodations for their religious beliefs and practices. Ms. Elauf was denied a job at popular retailer Abercrombie & Fitch, not because she was unqualified, but because she wore a head scarf. Although she was never asked why she wore the scarf to her interview, managers assumed it was for religious reasons, and for that reason, didn’t hire her. The United States Equal Employment Opportunity Commission took up Ms. Elauf’s religious discrimination case, all the way to the Supreme Court. The Supreme Court’s 8-1 decision rejected A & F’s argument that its “look” policy is religion neutral, and therefore, not discriminatory. The Court held that employers must treat religious beliefs and practices favorably, and cannot hide behind “religion-neutral” policies.

This decision is a stunning reversal of a decades-long trend treating religious accommodation claims with suspicion. Some fifty years ago, in the wake of the assassination of President John F. Kennedy, President Johnson arm twisted and cajoled Congress into enacting the Civil Rights Act, in honor of Kennedy’s legacy. While the act outlawed employment discrimination on the all the usual bases, religion has always been a poor stepchild.

Almost immediately, the question arose whether the Act’s prohibition of religious discrimination required employers to accommodate the religious beliefs and practices of its employees. Typically, such accommodations involve making exceptions from dress codes for religious expressions such as beards or yarmulkes. Or, even more commonly, employers are asked to permit workers time off to observe the Sabbath, a religious holiday, or to attend church.

When courts were divided on how to answer this question, Congress amended the Civil Rights Act in 1972 to clarify the employers must provide “reasonable accommodation,” but only if it does not result in an “undue hardship.” Still, employers did not know what these vague terms meant in practice. In a 1977 decision in Trans World Airlines v. Hardison, the Supreme Court appeared to view religious accommodation with suspicion, holding that even a minimal amount of hardship was “undue.” The back story on this case is that the court was asked to invalidate religious accommodation altogether as a violation of the First Amendment’s “establishment clause” separating church and state. Although the Court’s decision avoided the establishment clause argument, it greatly weakened the law instead.

The next time religious accommodation went to the Supreme Court was in 1986, when the Supreme Court held, in Ansonia Board of Education v. Philbrook, that employers get to choose among alternative accommodations. Often, employers choose accommodations that disadvantage employees.  This decision also weakened the position of workers seeking religious accommodation.

In 1990, when Congress enacted the Americans with Disabilities Act, Congress used the same legal standard for the disabled:  reasonable accommodation short of an undue hardship, but defined undue hardship as one causing “significant difficulty or expense.” Advocates for religious freedom began to draft comparable language, and have been asking Congress for nearly twenty years to toughen the religious accommodation law, to no avail.

But 1990 also saw a Supreme Court decision in a religious freedom case, Employment Division v. Smith, which has had an enormous impact on workplace discrimination. In the now infamous “peyote” case, Justice Scalia wrote that religion neutral laws did not raise First Amendment free exercise of religion concerns. Employers have often assumed the same logic applies to their own religion neutral policies – that they need make no exception for religious beliefs and practices. In practice, many Americans have lost their jobs because employers refused to make any exceptions for their religious observances, even when they could do so easily.

Justice Scalia’s opinion for an 8-1 majority in the Elauf case now buries the notion that company policies “trump” religious accommodation requests. The impact on companies will be modest, since such requests are typically quite few in number. But for those Americans of all faiths who can’t just park their religion at home when they go to work, the implications are huge. The issue in Samantha Elauf’s case concerned appearance: wearing of a head scarf. Clearly, the case signals a shift away from conformity to corporate appearance standards. California has gone even further, forbidding employers from segregating workers from the public on account of their religious appearance.

But the decision also implicates many other corporate policies, especially scheduling and discipline. Companies will have to become more flexible in scheduling those who need time to observe the Sabbath or attend church. They will also have to refrain from disciplining workers who would otherwise accumulate attendance points on account of religious observances.

Religious freedom has finally come of age in corporate America.

Alan Reinach

About Alan Reinach

Alan J. Reinach, Esq., is the Executive Director of the Church State Council, the oldest public policy organization in the west devoted exclusively to issues of religious discrimination and the separation of church and state.

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

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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.

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

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?????????????????????????????????????????????????????????????????????????????????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…)

Love shouldn’t hurt or get you fired

Love shouldn’t hurt or get you fired

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By Lisa Mak

Today is the last day of Domestic Violence Awareness Month, so let’s take a moment to reflect on the prevalence of domestic violence in our country.  The press has no shortage of coverage on the issue when celebrities are involved, such as the recent leak of a video showing NFL player Ray Rice punching his then-fiancée in an elevator.  However, the press largely ignores the real-world challenges faced by domestic violence victims.  One challenge is maintaining employment while trying to get out of an abusive relationship.  In most states, a domestic violence victim can still be fired due to the abuser’s conduct, based on an employer’s misguided safety or productivity concerns.

This is one of the shocking things I learned during my two years as a volunteer counselor on a domestic violence hotline.  During that time, I counseled many victims who had different reasons for hesitating to leave the abusive relationship.  Some victims were still in love with their abuser, or were too afraid of the violent aftermath if they tried to leave.  Some cited a lack of a support network, as their partner had isolated them from family and friends.  Still others were financially dependent on their abuser, who prevented them from working or had sabotaged every job they ever had.

In 2013, Carie Charlesworth, a teacher in San Diego, brought national attention to the economic vulnerability of domestic violence victims when she was fired after her abusive ex-husband invaded her workplace and placed the school on lockdown.  Even though Charlesworth had a restraining order against her ex and had called the police, the school still fired her for safety concerns – essentially punishing her and her 4 children for her partner’s crime by taking away her livelihood.

As a result, Charlesworth became a strong proponent of SB 400, a new law protecting domestic violence victims from job termination.  Enacted in 2013 and effective this year, SB 400 changed Labor Code sections 230 and 230.1 to prohibit an employer from firing or discriminating against an employee based on his or her known status as a victim of domestic violence, sexual assault, or stalking.  The law also requires employers to provide reasonable safety accommodations for victims at the workplace, such as changing a phone number or relocating an employee’s desk.

With this new law, California joined 6 other states – Connecticut, Hawaii, Illinois, New York, Oregon, and Rhode Island – to specifically protect DV victims from employment discrimination.  But that means that in 43 other states, there is still no protection or recourse for victims who are fired because of their status.  That is appalling, considering that on average, approximately 20 people per minute in the U.S. are victims of physical violence by an intimate partner.  About 1 in 4 women will experience some form of domestic violence in her lifetime.

For many victims, maintaining stable employment is critical for escaping the abusive relationship and for supporting themselves after leaving their partner.  A 2012 study reported that 74 percent of women nationwide stayed with an abusive partner for a longer time due to economic reasons.  In California, studies have shown that nearly 40 percent of DV survivors were fired or feared termination due to domestic violence.  Laws like SB 400 protect victims who are often in a very vulnerable financial position.  We need such laws in every state.

Some states do allow victims to take time off work for DV-related issues, such as obtaining a restraining order or testifying in court.  But those laws are woefully inadequate.  What good is it when an employee has a restraining order in hand but no job to go back to?  How will she support herself while trying to be financially independent from her abuser?

Even without such laws, companies would be well-served by implementing policies to protect such vulnerable employees.  Intimate partner violence is not just a “family” problem – it’s also a business issue.  Employees who suffer from domestic violence or workplace harassment by their partner understandably may miss more work and be less productive.  If the abuser visits the workplace, this could also be extremely disruptive to a company’s operations.  Yet surprisingly, a 2006 study found that over 70 percent of U.S. workplaces did not have a formal program or policy addressing workplace violence.  Even in those private sector workplaces that did have such programs, less than half addressed DV issues.

Firing victims of domestic violence does more than take away the financial security that can allow victims to leave their abuser.  It also perpetuates the stigma of abuse and discourages other victims from reporting their experiences.  It re-victimizes them and takes away the last shred of self-worth they may have.

It takes an incredible amount of courage for DV victims to exit their abusive relationships.  Let’s not make it harder by putting their employment at risk too.

 

Lisa Mak

About Lisa Mak

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

Corporate “wellness” programs are unhealthy for employee rights 1

Corporate “wellness” programs are unhealthy for employee rights

By Nicole Heeder

The Affordable Care Act has everyone up in arms.  From its chaotic rollout to the Supreme Court’s fast approaching opinion in the Hobby Lobby birth control coverage case, “Obamacare” has been writhing with controversy.

So why isn’t anyone talking about the dangers  posed to employee privacy by Obamacare’s “health contingent wellness plans”?  Although on the surface these plans have an admirable purpose, we need to look deeper. Here’s how these wellness plans work:   An employer may offer its employees financial incentives to quit smoking, lose weight or make other healthy changes to their lifestyle, encouraging healthy behavior. So far so good?

While this sounds good in theory, the devil is in the data, specifically the data that employers are collecting to measure their employees’ health status. Health contingent wellness plans require employees to undergo invasive biometric health screenings on an annual basis.  Employees are weighed, poked and prodded to find out their weight, height, body mass index, blood pressure, and cholesterol levels. Biometric results are then used to identify individuals who are at risk for disease, most commonly heart disease and diabetes. Once the data is collected, the employer then offers employees incentives to change their lifestyle all in the name of lowering employer healthcare costs.

These incentives may come in the form of decreased premiums, cash or other gifts.  But the incentive programs are not all they’ve cracked up to be — employees who do not meet expectations may be subjected to surcharges if they fail to stop smoking, take a fitness course or work with a health coach, not to mention the follow-up testing.

There is also the real risk that employers will view employees who do not meet company set standards as a burden on their workforce.  An employer who believes that perceived medical conditions or disabilities interfere with the employee’s ability to perform may be tempted to discriminate against or terminate employees who fail to meet health goals.

With this in mind, some protection against employer discrimination is built in to the ACA — access to the biometric results is limited to the third party vendors who conduct the testing. However, practically speaking, this structure is far from fool-proof. Should an employer suspect that an employee has a disability or medical condition, something as simple as reviewing the insurance premium changes may provide confirmation. Worse yet, these screenings often take place at the worksite further threatening employee privacy and easing employer access.

Another form of protection is the “reasonable alternative standard” for employees whose medical condition prevents them from attaining the health results required to qualify for incentives. But since an effective alternative needs to be tailored to the individual’s specific medical condition, the employee is forced to self-identify the disability in order to qualify for lower premiums.  Compelled disclosure of a medical condition or disability to an employer violates the California Fair Employment and Housing Act.

The Fair Employment and Housing Act and other California laws prohibit disability discrimination and prevent an employer from discriminating against an employee for lawful off-duty conduct.  Employee choices about what to eat, whether to exercise, or whether to smoke cannot be policed by employers.  Health contingent wellness plans undermine these protections.

While encouragement of a healthy workforce is commendable, “health contingent wellness plans” present risks that must be addressed  to ensure that they do not become a smokescreen for discrimination based on health status.

Nicole Heeder

About Nicole Heeder

Nicole Heeder owns and operates Law & [M]ocean, a plaintiffs’ employment law boutique in San Diego. She is focused on eradicating discrimination and harassment issues in the workplace.

Three point lines and coal mines 1

Three point lines and coal mines

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By Christian Schreiber

New York Knicks forward Carmelo Anthony is one of the NBA’s biggest stars, playing in the country’s biggest market.  This summer, he will likely be a free agent – available to sign with another team for a contract that will almost certainly be worth in excess of $100 million.  At last month’s NBA All-Star game in New Orleans, Anthony made news for agreeing to consider re-signing with the woeful Knicks for a contract that will pay him less than the maximum available under the terms of the collective bargaining agreement signed between the NBA Players Association and the NBA.

It has become a familiar PR move for superstars in every major sport when free agency approaches.  If they don’t publicly embrace a willingness to be paid less as part of some single-minded pursuit of winning a championship, they are assailed as me-first losers and forced to justify their “selfish” desire to be paid what the market will bear for their skills.

You do not need to be a sports fan to recognize this trope.  It is familiar to anyone who cares about employees, working conditions, and fair pay because it is made of the same stuff shoveled onto “ordinary workers” whose labor doesn’t make a Top 10 list.  Whether it’s low-wage workers on the front lines of the minimum wage debate, or well-paid tech workers fighting wage collusion in the Silicon Valley, workers are often asked to embrace one short-changing or another.  (Sometimes, it is even offered in the metaphor of sport.  But just when exactly did “being a team player” and “taking one for the team” come to mean “work off the clock” or “don’t mind those sexual advances”?)

This is what drives me crazy when I hear athletes decried as overpaid.  We should all recognize athletes for what they really are: workers. In fact, most of them are workers who are regularly exploited for profits passed upward into the pockets of the absurdly rich; workers with little to no job security; and workers who risk their bodies for little pay.  Sure, Anthony has made millions playing a game.  But his billionaire bosses – the Dolan family, who own Madison Square Garden and rank 151st on Forbes’ list of the richest Americans – make tens of millions more from the brand fostered by Anthony and his co-workers.

More importantly, we cannot forget that Anthony and other “superstars” are the rare exception.  Athletes remain among the least prepared to deal with their earnings (NB: not “wealth”), and many high profile athletes wind up broke after short careers.  The vast majority of athletes, in fact, toil for low wages, risk their long-term health, and even death in order for their employers to enjoy a fatter bottom line.  Sound familiar?  While the NFL’s Commissioner, Roger Goddell, made $44.2 million in 2012 (which we know because…the NFL is…you guessed it…a non-profit organization), players in the NBA’s developmental “minor league” (called the D-League) are placed into one of three classifications, and paid $25,500, $19,000 and $13,000.  Even ESPN acknowledges rather Cavalierly that this “means D-League players are virtually playing for free.”

Why is this acceptable? And why doesn’t this cause more concern among worker advocates? Is it because it’s too difficult to see similarities between your skills, and say, LeBron James’? Is it because we believe that athletes have waived their rights and assumed the risk?  Or is it because scrutinizing our escapist institutions is kind of a buzzkill?  It’s a lot easier thinking about Messi’s unparalleled ball skills than about the children who made the ball.  (For years it has been easier to think about anything other than the Raiders. But recent allegations of wage theft against the Raiderettes affirmed what most fans already knew about their quality of the organization.)  Every now and then we get a peek into the caste system that props up our sports industrial complex, and it’s usually unsavory.

Back on the pedestal, athletes are starting to fight back.  Minor league baseball players have filed a wage and hour lawsuit against major league baseball for paying them less than minimum wage.  The Northwestern men’s football team appeared last week at the NLRB in support of their effort to unionize as University employees.  The team’s former quarterback, Kain Colter, testified, “We are first and foremost an athlete.  Everything we do is scheduled around football….It’s truly a job.”  Another group of former college athletes filed an antitrust action against the NCAA for depressing the value of their scholarships. And 25 other former NCAA athletes, led by 1990’s UCLA basketball star Ed O’Bannon, are heading to trial on June 9 against the NCAA in a case in which they claim the NCAA licensed their likenesses without payment.

I give a high five to all these efforts.  Athletes have a unique power to drive public debate on workplace issues.  Whether it’s new frontiers like workplace bullying and political speech or transformational moments that snarkily signal a culture of non-discrimination in the workplace, we ought to be latching onto these moments to relate them to “ordinary workers” and “ordinary workplaces.”  The sports workplace can offer entrenched backwardness just like any other. But it can also be a laboratory for progress.  The next time an athlete is challenged as a spoiled crybaby, it would behoove us to remember he or she is a worker, and to recognize “the power of the uniform” – whether it is worn by a San Francisco janitor or a San Francisco Giant.

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.

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