2014 ← CELA VOICE ← Page 3

Californians get a raise today, but we can do better!

Jul

1

2014

Today, California’s minimum wage increases to $9 per hour. To many Californians, this comes as good news, but will still not be enough to lift them out of a life of poverty. Other localities have taken more aggressive approaches to boost wages, like Seattle, Washington which recently decided to increase the city’s minimum wage to $15 per hour by 2018. Since Congress has idled on increasing the minimum wage, efforts across the country are necessary to curb the exponential growth in income disparity that has occurred over the past few decades.

The first federal law establishing a minimum wage was passed in 1938. At that time, minimum wage was set at $0.25 per hour. Critics complained the law would have a devastating effect on the economy. The opposite proved true as unemployment rates dropped significantly in the years following.

Following passage of the Fair Labor Standards Act in 1938, minimum wage continued to increase gradually. In 1968, federal minimum wage was $1.60 per hour. That may not sound like much, but adjusted for inflation, that was $10.69 per hour in 2013 dollars.

Since 1968, however, the federal minimum wage has been steadily declining in terms of buying power. In other words, an employee earning minimum wage in 1968 could afford to live much more comfortably than an employee earning minimum wage today. Not surprisingly, the income disparity between the richest 1% of Americans and the other 99% has steadily grown.

Many opponents of minimum wage increases claim that raising the minimum wage kills jobs and hurts the overall economy. However, a number of studies over the past 14 years show that minimum wage increases have little to no effect on economic growth. This makes sense. People who earn more spend more. When spending increases, businesses have to hire more workers to handle the increased demand for products. Accordingly, any jobs lost from businesses that cannot afford to pay higher wages and still remain profitable are replaced by jobs created by businesses that need more staff to cover increased sales.

This day in age, full time employees earning minimum wage make $15,080 a year assuming a 40 hour workweek and no time off. The federal poverty line for a 2 person household is currently $15,730 a year, and it increases to $19,790 for a 3 person household. This is highly problematic, especially for single parents. In order for a single parent making minimum wage to meet the basic necessities of life, s/he has to either take on more than full time work, go on government assistance, or, worst of all, turn to crime. On the other hand, if minimum wage is increased to just $10 per hour, a full time minimum wage earning employee will make $20,800 per year, which amount is sufficient for a single parent with 2 children to stay above the poverty line.

In conclusion, we need to increase the minimum wage. It will reduce the rising income disparity. It will have no effect on the economy. And, most importantly, it will keep millions of single parents and children out of poverty.

About Kevin Schwin

Kevin Schwin graduated from the Cleveland-Marshall College of Law cum laude with a J.D. Concentration in Labor and Employment Law. While in law school, Mr. Schwin served as President of his law school’s Employment and Labor Law Association. Mr. Schwin received his B.B.S. from Miami University in Oxford, Ohio, majoring in Human Resource Management. Mr. Schwin enjoys sports and traveling in his free time. He traveled to Italy as a foreign exchange student while in high school. He speaks fluent Italian and is proficient in French.

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Even when LGBT Pride Parade is over, corporations should keep marching against discrimination

Jun

30

2014

By Elizabeth Kristen

On Sunday, hundreds of thousands lined Market Street and watched the corporate contingents as they marched in San Francisco’s annual LGBT Pride Parade. The corporate banners and legions of marching employees are testament to how companies are trying hard to appear that they have “come out” as pro-LGBT rights. Other signs of change can be seen in the recent corporate advertising campaigns featuring LGBT couples and families. This kind of corporate support for LGBT equality and the integration of the LGBT community into the mainstream has undoubtedly been a forceful engine for change. But the majority of LGBT workers are still afraid to come out fully in their places of work and they continue to face harassment and discrimination.

Given the long wait for a federal non-discrimination law, what can employers do to welcome LGBT employees and keep them safe? A critical component that should be familiar to every HR manager is promoting a positive, inclusive LGBT workplace culture. Fortunately, according to a recent study, most employee resource groups have already achieved this. 67% of LGBT employees feel “very welcomed” by their employee resource group, while only 2% feel either “not too welcomed” or “rejected.” But this leaves a substantial middle ground that companies can improve on by making overtures to LGBT employees, while taking an emphatic stance against offensive comments, jokes, and policies.

Implementation of pro-LGBT personnel policies is also important, as it addresses important concerns for LGBT employees while also familiarizing non-LGBT people with LGBT needs. Companies that want to demonstrate their commitment should also provide benefits to compensate for legal inequalities that same-sex couples face, as Google did in 2010, and cover important gender confirmation surgery for interested transgender individuals.

Some statistics also tell the story of how far we have come and how far we still have to go.

91% of Fortune 500 companies have extended workplace protections to cover sexual orientation, up from 61% in 2002.
For transgender individuals, the proportion is only 61% as of 2014. That number is up from 3% in 2002, but still falls short.

Policies on paper are not enough to change a workplace, however. Real cultural shifts only come with action, including action at the top of the corporate ladder. Employers who mandate LGBT sensitivity in workplace training alongside race, sex, national origin, disability and other characteristics are making the welcome message clear. And those who implement gender neutral bathrooms are putting into everyday practice a respect for the diversity of their workforce. And though homophobic objections are becoming more and more marginalized, companies and/or their CEO’s can repudiate them publicly, in a way that will convey to both employees and consumers that the company stands by its commitment to the LGBT community.

Despite the fantastic victories achieved, the fight for LGBT rights and inclusivity is far from over. Workplaces have a role to play in that fight. Workplace managers should take pride in what progress they have facilitated, yet remain attentive to the challenges that remain. Just because June’s LGBT Pride Month is over, there is no reason to stop marching towards pro-LGBT workplaces.

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.

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With so many corporations coming out for LGBT rights, why are so many workers still in the closet? 1

Jun

27

2014

It is hard to deny the remarkable ascendance of LGBT rights over the past decade. But the breathtaking gains in marriage equality in all corners of the country have obscured the focus on at least one important arena where we still lack equality – the workplace.

A recent Human Rights Campaign survey details the experiences of LGBT people at work. Perhaps most startlingly in an era when being out is in for LGBT celebrities, sports figures, and politicians the survey revealed that 53% of everyday LGBT folks are still fully or mostly closeted at work. When polled about why they remain closeted, 38% of respondents cited the possibility of making others feel uncomfortable; 36% responded that they feared the possibility of being stereotyped; 31% feared losing connections or relationships with coworkers; and 23% anticipated being passed over for advancement or development opportunities.

LGBT workers who fear disclosing their sexual orientation or gender identity are probably pretty accurate in predicting how their co-workers might react. Less than half of non-LGBT survey respondents said they felt comfortable hearing an LGBT coworker talk about their social life, dating, or a related subject, and more than 70% agreed that it would be “unprofessional” to talk openly about one’s sexual orientation or gender identity in the workplace. Of course, this is a standard that is not applied to straight workers, who routinely regale their closeted LGBT co-workers with stories about their opposite-sex relationships and social life. Indeed, more than 60% of non-LGBT respondents reported that children, spouses, and social activities were indispensable topics of conversation in the workplace.

But this survey gives us more to worry about than how LGBT workers are censored in coffee room conversations. Another finding is that more than one in five respondents had looked for alternate employment in order to avoid anti-LGBT hostility. And nearly 10% of LGBT employees report they felt so much hostility at their workplace due to their sexual orientation that they had no choice but to leave their job.

The numbers are far worse for transgender workers: a report issued in 2011 by two LGBT rights organizations found that 90% of transgender people nationwide had experienced at least one form of harassment, physical assault, mistreatment, or sexual assault at work because of their gender identity. And almost half have been fired, not hired or denied a promotion because of anti-transgender bias.

So what is to be done to turn the promise of welcoming workplaces into a reality? Some might blame closeted employees for hiding their identities from co-workers, thus depriving co-workers of the opportunity to unlearn their stereotypes and bias. However, the burden should not fall on LGBT employees to expose themselves to the very real risks of harassment, ostracism, job loss, or worse. As has been the case in the marriage equality movement, coming out has an important role to play in making change in the workplace for LGBT people. But it cannot happen without the protections of strong anti-discrimination laws and comprehensive employer policies that promote inclusion, train managers to combat harassment, and provide equal benefits for LGBT employees and their families. In another post, I will be outlining how corporations can do just that. As for passing laws to end employment discrimination and harassment against LGBT people, the prescription is simple — Congress should finally to pass the Employment Non-Discrimination Act!

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.

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Corporate “wellness” programs are unhealthy for employee rights 1

Jun

19

2014

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.

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.

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Paid Sick Days – Healthy for California

Jun

13

2014

By Elizabeth Kristen

This week, California’s “Paid Sick Days” bill cleared another hurdle in the Senate Labor Committee where it passed on a party line vote. AB 1522, by Assemblymember Gonzalez, would provide all California workers with at least three days of paid sick leave per year. The bill would also allow an employee to use leave if necessary due to domestic violence, sexual assault, or stalking.

While a provision of some sick leave is an important improvement upon California law, three days per year is simply not enough. And the recent deletion of the private right of action, which would allow workers to enforce their rights in court, removes an important mechanism to make sure that workers actually are able to access their right to paid sick days. California needs to adopt a more robust paid sick leave law. Doing so is critical for public health, for workers and their families, and for California’s economy.

Many workers, especially low-wage workers, do not receive any paid time off from work for their illness. This forces them to work while sick – serving food in restaurants, providing child and elder care, and ringing up purchases as cashiers. This is bad enough for the workers themselves, but the consequences infect the economy and public health as well.

The burden to work while sick is not something that we all bear equally. Latino workers, for example, are significantly less likely to have paid sick days – only 47 percent of Latinos receive some form of paid time off, compared with 61 percent of the overall workforce. Unsurprisingly, the poorest workers also have the least access to paid sick leave. Thus, workers who can least afford to use unpaid days and who cannot afford to lose their jobs are also those least likely to have paid sick days at their disposal. Of workers paid $65,000 or more per year, more than 80% have paid sick days; by contrast, only about a quarter of workers making less than $20,000 per year reap this important benefit.

Recognizing this disproportionate burden, several forward-thinking cities have made progress towards eliminating this difficult ultimatum by adopting paid sick leave laws. The table below shows those jurisdictions, including the size of employer covered by the paid sick days law, the maximum amount of leave provided, and whether the leave is paid or unpaid. Although eligibility and the extent of benefits vary greatly, all of these jurisdictions see healthy families and healthy economies as intimately linked, not mutually exclusive.

Although cities have pioneered this protection, some states recognize that the cost or trappings of urban living serve as barriers for many workers and families. The state of Connecticut became the first state to adopt paid sick days in July 2011. Connecticut’s leave can be used for the worker’s own health, for the care of a child or a spouse, or for needs related to domestic violence or sexual assault. A recent report about this law found that offering paid sick days did not harm business. In fact, many businesses reported positive effects, including reduced employee turnover, reduced spread of illness, improved morale, and increased productivity, motivation, and loyalty. Eighteen months after the law took effect, more than 75% of employers were either “very supportive” or “somewhat supportive” of the new law.

Unfortunately in other states, the legislative trend has moved in the opposite direction. Ten states— Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Tennessee, and Wisconsin — have enacted legislation to block cities from adopting paid sick leave, and fourteen other state legislatures have seen the introduction of such legislation. In addition, Milwaukee, Wisconsin’s paid sick days bill was invalidated by a state law banning such ordinances.

Enactment of a federal law allowing workers to protect their health without sacrificing their financial or occupational wellbeing would override state laws hostile to the rights of workers. Pending national legislation—the Healthy Families Act—would provide paid sick days as well as paid safe days for victims of domestic violence, sexual assault, and stalking. But, for the time being, “[t]he United States is the only country out of the 15 most competitive that doesn’t guarantee paid sick days to all workers, leaving 40 percent in the private sector without access to the leave.”

This coverage gap is not only embarrassing, it also is bad for workers and their families and undermines public health. By allowing workers to address their pressing health needs without sacrificing wages, paid sick leave would preempt the degeneration of illnesses into emergency situations. Without offering paid sick leave, workers must gamble with their health, and may suffer wage and job losses. In addition to these economic concerns, workers’ hardships often need to be offset by significant public assistance expenditures. Nor does the employer benefit by withholding paid sick leave from its employees: loss of productivity due to illness is twice as expensive to employers as absenteeism. These conclusions follow not only from common sense, but from the benefits reaped by workers and businesses across the state of Connecticut.

The rhetoric surrounding this debate is feverish, but the health of our economy and the health of our workers need not be at odds. Paid sick leave is the antidote to many social ills – from economic inefficiency to reliance upon public assistance. All stakeholders should endorse paid sick leave in order to promote a healthier economy, for employers and employees alike.

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.

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The myth of big philanthropy 2

Jun

10

2014

By Christian Schreiber

At the end of May, Facebook founder Mark Zuckerberg and his wife, Priscilla Chan, announced a $120 million donation to California public schools. This donation comes nearly four years after Zuckerberg appeared on Oprah to announce his initiation into the Philanthropic Billionaires Club, touting a $100 million commitment to the Newark, New Jersey public school system. The gift was hailed as a good-government, bipartisan victory that put children over politics – having been orchestrated by Newark’s Democratic Mayor, Cory Booker, and blessed by New Jersey’s Republican Governor, Chris Christie.

The four tumultuous years that have followed are the subject of a fantastic piece in a recent New Yorker about the difficulties of displacing the entrenched interests and changing the institutional habits of the city’s underperforming schools. Like others with school-age kids in an urban public school system, I read the story with an eye toward the charter-school-versus-teachers-union narrative that is typically advanced to explain why urban schools turn into “failure factories.”

Then I reconsidered the narrative. Maybe the problem isn’t the schools. Maybe the problem is that Mark Zuckerberg has $100 million to give to the Newark public schools in the first place.

The media clearly believe that these types of public-private partnerships have more than a little feel-good appeal. But the scripted “rich-guy-gives-back” moments rarely maintain their luster for very long. After Oprah finished fawning over Zuckerberg and his largess, she failed to ask Booker or Christie the more obvious questions, such as what kinds of jobs do the parents of Newark’s public school students have? Or can they hope to have?

For years the conventional wisdom has been that good jobs were the consequence of a good education – but maybe it is time we turned the equation around. How can we expect children to get a good public school education when their parents don’t have a good job? What is the culture of professional achievement parents can model for their kids’ academic achievement? Maybe no matter how much money is thrown at it, public schools can’t be “fixed” for the kids unless and until we improve the job prospects of the parents.

Ironically, the same Silicon Valley businesses spawning schools of “venture philanthropists” bent on fixing society’s ills oppose increasing the minimum wage, which promises to fix its biggest ill. One in five children in the U.S. has a parent who is a minimum wage worker, and that number is no doubt higher in places like Newark, where decades of academic failures have left many residents with few choices but a minimum wage job. And it’s not just minimum wage workers who are suffering. While middle class incomes languish, millionaires sprout, only to abandon the very middle class institutions that need fixing. We have reached the point where $1,000,000 donations are celebrated, but $1/hour increases in the minimum wage are excoriated as class warfare.

This bizarre world leaves our elected officials with an unenviable choice: address the problem of income inequality (and alienate the donor base), or nibble around the edges of society’s employment problems and ignore the larger and far more important issue of concentrated wealth. Case in point: the same week Zuckerberg announced his California public school donation, SB 1372, a bill that would have tied a company’s corporate tax deductions to CEO-to-worker pay ratios (the higher the ratio, the lower the allowable deduction), died on the Senate floor with little fanfare. Because big ideas like this go nowhere, advocates find themselves locked in smaller-issue fights just to hold onto the relatively paltry wages they manage to earn.

The dynamic Booker (now a U.S. Senator) illustrates the problem. He has become a favorite of the Left and the Right, in large part because he has proven the most adept at “bridging the gap” between the resources of the rich and the needs of the poor. Though he was the mayor of a small eastern city, he crisscrossed the country to seek audiences with the wealthy (many here in California), his hand out “on behalf of” the underclass that had come to define his city.

Senator Booker’s motives appear to be genuine; but his rise symbolizes an emergent symbiosis between uber-monied interests and New Left politicians. Senator Booker is handsome and Stanford-educated, and the child of successful, professional parents. His presence on Silicon Valley sofas does nothing to disrupt the cultural feng shui of its tony enclaves. In exchange for his righteous ask, he offers the bona fides that come with “doing good” for those “less fortunate.” The poor get venture philanthropy. The rich get to meddle in other people’s neighborhoods. And his profile (and donor rolodex) grows.

Nothing is likely to change until we recognize that $100 million gifts are a symptom of a problem, not a solution. And you don’t need to go to Newark, New Jersey to find examples. Just 12 miles east of Facebook’s Menlo Park headquarters is Newark, California, where the second-largest employer in the city is Logitech. Logitech’s CEO made more than $6.6 million last year, while a teacher earning the median salary in the Newark Unified School District (the City’s largest employer) made less than 1% of that, or $63,445. If we hope to fix our public institutions, we first need to understand that they will not be cured by the philanthropic whimsy of the tinkering class.

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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Interns may work without pay, but that does not mean they should work without protection against harassment and discrimination

Jun

3

2014

By Amy Semmel

Unpaid internships are touted as the first rung on the modern ladder to career success. But it may come as a surprise to learn that unpaid interns are currently falling through a loophole in California’s comprehensive anti-discrimination laws. Next week, the California Assembly Judiciary Committee will hold a hearing to consider Assembly Bill 1443, a bill designed to close that loophole and provide interns the same protections against discrimination, harassment and retaliation that regular employees now have.

According to editors at the popular fashion industry website, Fashionista, “Internships can be a great way to break into the industry – actually we’d argue that they’re pretty much the only way to break into the industry.” Here in Hollywood where I work, successful directors, producers, actors, writers and show runners regale us with stories of their lowly start as interns, fetching the coffee and running production errands.

College students and recent grads clamor for the opportunity to get a shot at these entry level “jobs.” The 2013 College Graduate Employment Survey by a management consulting firm estimates that almost 30% of 2012 college graduates worked at an unpaid internship during college. Unfortunately, the inherent opportunity of internships brings with it the potential for exploitation of workers who are young, anxious to succeed, and eager to please.

AB 1443 would protect against the kind of sexual harassment faced by Lihuan Wang, a 22-year-old broadcasting intern who took an unpaid internship at Phoenix Satellite Television, only to find herself being lured to a hotel room where she claims her supervisor forcibly kissed and groped her. Ms. Wang says she learned that the same supervisor had harassed others and reported the harassment to management. After she complained, the supervisor blocked her employment prospects with the company. Her discrimination and harassment claims were thrown out of court in New York, which like California had no protection for unpaid interns because they are not considered employees.

Let’s make sure that the first step on the career ladder is a sturdy one for Californians just entering the working world. Particularly in an economic climate where new college graduates and other young people are willing to work for nothing more than the experience they gain, interns deserve the full protection of California’s equal opportunity laws.

About Amy Semmel

Ms. Semmel devotes her practice to eradicating discrimination and retaliation in the workplace. She advocates for employees seeking remedies for retaliation for whistleblowing, discrimination and wage theft. Ms. Semmel is frequently invited to speak at conferences and seminars throughout the state. Subjects on which she has spoken include discovery issues in employment litigation; liability of successor, electronic discovery, alter ego and joint employers; the Private Attorney General Act, and developments in wage and hour law.

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Telecommuting as reasonable accommodation? Court says, “Yes.”

May

30

2014

By Lisa Peck and Daniel Velton

When Yahoo’s Marissa Mayer abandoned the company’s wildly popular telecommuting policy, the move was met with a storm of protest. As an industry leader, Yahoo’s innovative flex options were seen as a welcome paradigm shift of where, how, and by whom work gets done.

Mayer’s move reflected a common misconception that telework creates a dangerous “out of sight, out of mind” career dynamic. Employers worry about reduced performance, decreased productivity, increased obligations, and lack of control or oversight. Employees fear exclusion from opportunities and advancement, loss of benefits, being ostracized or devalued for lack of “face-time.”

Yet, telework is sometimes the best choice for worker job satisfaction and employer competitive advantage. Technological advances, evolving societal values, and legal progress affecting workers’ rights make telework not only a possibility, but also a practical necessity in today’s workplace.

The reasons for teleworking are as diverse as the people seeking alternatives to physically being in the workplace all day, everyday. For example:

An employee who is able to work a full-time schedule may have an illness preventing him from physically being in the office full-time;
A start-up business is in dire need of more workers, but it does not have the resources to physically expand its workspace or move to a bigger location;
A single parent needs flexible work arrangements to work from home to provide care for a disabled child;
An employer suffers pointless downtime as a result of horrendous commuter traffic, and needs a solution.

In these situations, telework is a win-win for everyone.

Recently, in Equal Opportunity Employment Commission v. Ford Motor Co., the United States Court of Appeals for the Sixth Circuit issued a groundbreaking opinion recognizing that an employee may be entitled to “remote work” (telework) as a reasonable accommodation for his or her disability, along with more traditional options such as modification of workstations, flexible work-hours, frequent breaks, job transfers or reassignments, and finite leaves of absence.

In its decision, the Sixth Circuit Court differentiated “remote work” from “flex-time” arrangements – distinct concepts that are often confused. Although employers may reasonably require a worker’s adherence to a regular schedule during predictable business hours, the essential functions of many jobs do not require in-person attendance.

The court reasoned that, “the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.” It recognized a cultural shift in that “communications technology has advanced to the point that it is no longer an ‘unusual case where an employee can effectively perform all work-related duties from home.’”

The Federal government recognizes telework as an established component of the modern workplace. The Telework Enhancement Act of 2010 required federal agencies to establish a framework making telework available to federal employees. The EEOC published Guidance to put employers on notice that blanket prohibitions on work-from-home policies may constitute actionable discrimination against disabled employees. The U.S. Department of Labor warns employers against misuse of telework policies for reasons prohibited by law, such as excluding employees from telework or forcing telework upon employees based on improper motives. Yet, during recent outbreaks of the H1N1 virus, the DOL suggested telework as an option for employers to minimize the spread of illness and worker absence. Similarly, OSHA has updated provisions relating to the safety of and recordkeeping for teleworkers at remote worksites to protect both employers and employees.

Telework also offers creative solutions to employers. For instance, employers reasonably worry about consistent workflow during an employee’s leave of absence, and the added expense and logistics of covering the absence. However, an employer may consider temporary reassignment of an employee to a telework position as an alternative to full-time leaves of absence, and it may consider combining intermittent leave with telework to both extending the time over which leave may occur while keeping work current.

Some employers, including the U.S. Patent and Trademark Office, have taken teleworking to a new level with “hoteling,” a practice allowing rotation of office space while other employees work from home. Other trends breaking down the walls of our workplace are concepts of work-anywhere, “BYOD” (or, “Bring Your Own Device”), walking meetings, and other innovations to improve both work-life balance and productivity.

Telework opens doors for both employees and employers. The recent decision recognizing telecommuting as a reasonable accommodation is an important step toward workplace equality. By acknowledging that workers can efficiently perform and thrive in alternative “workplaces,” the court has set a welcome precedent in favor of innovative workplace policies that increase employment opportunities for all.

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.

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Honor working moms this Mother’s Day by signing a card to protect their jobs

May

9

2014

By Sarah Schlehr

This year marks the 100^th official anniversary of Mother’s Day. Let’s make it memorable by asking Congress to support the Pregnant Workers Fairness Act. The National Women’s Law Center is asking everyone to sign the biggest Mother’s Day card ever. By signing this card, you will be asking Congress to protect pregnant women and allow them to keep their jobs when they need modest accommodations during their pregnancy.

Although California has some of the strongest workplace protections for pregnant women, many states today do nothing to protect moms-to-be in their jobs. Pregnant women have been fired because they asked to avoid heavy lifting, stay off ladders, or sit on a stool instead of standing at a cash register all day. And the companies that fired them, did so legally! This needs to change.

Women make up almost half of today’s workforce and over forty percent of moms are the sole or primary breadwinners for their families. Sixty-five percent of married mothers with children work. The Pregnant Worker’s Fairness Act would help moms-to-be stay in their jobs and continue providing the financial support that their families need.

Not only are mothers’ incomes often essential to providing for the needs of their babies, but studies have shown that working mothers have children with higher scores in language, reading, and math across gender, socioeconomic, and marital status. The daughters of working mothers showed more positive assertiveness, increased willingness to challenge traditional gender roles, and increased competence. Dual income couples also report the highest marital quality. And while there is nothing wrong with being a stay-at-home mom, we need to protect the employment of mothers who work.

The Americans with Disabilities Act (“ADA”) already protects disabled workers from being fired when they need reasonable accommodations at work. There is no reason that pregnant workers shouldn’t receive the same protection. For example, the ADA would protect a worker who experienced a hernia and needed to avoid heavy lifting, but if that same worker became pregnant, the employer could legally fire her for asking for the exact same accommodation.

The Pregnant Worker’s Fairness Act would change this by ensuring that employers make reasonable accommodations when workers have a medical need because of pregnancy, childbirth, or related medical conditions. Because new moms should never have to choose between the health of their baby and their job.

This Mother’s Day, tell Congress to do more than pay lip service to our hard working moms. It’s time we pass the the Pregnant Worker’s Fairness Act and show our moms that they are valued both at home and in the workforce.

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.

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What you need to know before you blow the whistle 2

May

2

2014

By Anne Richardson

Can a public employee be terminated because he testified truthfully that another government employee was defrauding the government? That is the question in the case of Lane v. Franks, argued in front of the United States Supreme Court earlier this week.

Edward Lane was hired as interim director of an at-risk youth program for Central Alabama Community College. Shortly after he started working, he audited the program’s finances, and found that Sue Schmitz, an employee who was also a member of the State Legislature, appeared not to be performing her community relations job, even though she was collecting a paycheck.

Representative Schmitz’ “no show” job performance was investigated by the FBI, and eventually she became the subject of a federal prosecution by the United States Attorney for the Northern District of Alabama. Lane was subpoenaed by the U.S. Attorney to testify before a grand jury and in two criminal trials.

Lane testified truthfully that Representative Schmitz was on the payroll for his program – one of its highest paid employees — but had never reported for work. When he attempted to get her to carry out her job duties Schmitz refused, and warned him not to mess with her. He fired her despite the threat because he believed that allowing her to continue taking money for a “no show” job would make him complicit in her dishonesty.

Schmitz was convicted in federal court of taking $177,000 in public funds. The Alabama Attorney General called the case “one of the most egregious public corruption situations in Alabama’s history.” It led to a total rewrite of its public corruption laws and ethics laws. But instead of being rewarded for his part in bringing her to justice, Mr. Lane was fired from his job.

Hey wait a minute, how could this happen? Government whistleblowers are protected by the First Amendment, aren’t they? Well, not always. The Supreme Court has long held that government employers have greater latitude to discipline whistleblowers than employers in the private sector. It created a balancing test to ensure that public employees cannot simply say whatever they want, to whomever they want.

In Pickering v. Board of Education, the Court ruled that the subject of the employee’s speech must be of public concern; the employee’s comments cannot be false; and the employee’s conduct must not interfere with the regular operations of the employer. In Garcetti v. Ceballos, the Court ruled that if the employee’s speech is part of her official responsibilities, she is not protected from retaliation by the First Amendment.

The Lane case gives the Supreme Court its first opportunity to clarify what it meant in Garcetti. The attorney representing Lane’s employer argued that since Lane’s testimony was based on information that Lane learned in carrying out his job duties, he is not protected by the First Amendment. Lane’s attorney responded that since testifying in response to a federal subpoena in a corruption investigation was not part of his job duties, he is protected. Lane is supported by numerous groups, including the National Association of Police Organizations, whose “friend of the court” brief argued that permitting retaliation against officers who testify would “promote obstruction of justice.”

California law provides more protection to whistleblowers, both public and private. In 2013,the Legislature amended the California Labor Code to make it clear that employees are protected against retaliation “regardless of whether disclosing the information is part of the employee’s job duties.”

California’s approach is better because whether or not reporting misconduct is a whistleblower’s job, society loses if he is not protected. If you can terminate someone who fulfills his responsibility by testifying truthfully, you are creating a perverse incentive to lie under oath. As a society, we should encourage whistleblowers who bring corruption to light, not punish them. A decision from the high court should be announced this summer.

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

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