Winter 2010: Topics of Interest for 2010 (Part 2 – Other Topics)

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Supreme Court Cases
Reverse Discrimination – The City of New Haven, Connecticut discarded the results of promotion examinations on which Caucasian and Hispanic candidates significantly out-performed African-American candidates, based on a potential adverse impact lawsuit by the African-Americans. The Caucasian and Hispanic firefighters then filed suit. The Supreme Court ruled in favor of the plaintiffs stating that employers can only take such actions when there is “strong evidence” (not found here) that unlawful discrimination would occur. Employers are thus advised to carefully examine policies and practices prior to implementation to avoid claims of discrimination (or reverse discrimination).

Anti-Retaliation Provisions – The Supreme Court found that when an employee communicates to the employer a belief that the employer has engaged in discrimination the employee will almost always be found to constitute action opposing the activity and give the employee protection from retaliation for having done so. This continues expansion of this concept under federal law. Employers must consider any such actions by employees when disciplining or terminating employees to minimize the risk of a retaliation claim.

ADEA – The Supreme Court held that plaintiffs cannot prevail on an age discrimination claim by showing that age was “a motivating factor” (among others) in an adverse employment action but must show that they action would not have been taken “but for” the employee’s age. This will make it more difficult for employees to win ADEA suits. [California employers should keep in mind that this does not affect suits brought under FEHA.]

Wage and Hour Issues
The California Labor Commissioner has issued an Opinion Letter stating that an employer can deduct from the leave bank (sick, vacation or PTO) of an exempt employee on a partial day basis (which need not be any minimum number of hours as long as the bank is part of a “bona fide benefits plan”) but cannot dock the pay of the exempt employee for such partial day absences. The letter also affirms the Labor Commissioner’s position that California will follow the federal rule which allows for docking the pay of an exempt employee for weeks in which the employee takes unpaid leave (on a reduced schedule or intermittent leave basis) under the FMLA/CFRA (which may include partial days).

Under the revised California Labor Code section on Alternative Work Weeks, the menu of work schedule options can include a regular schedule of 8-hour days and employees can, with the employer’s consent, change their work schedule (from the available options) on a weekly basis.

Social Media and the Workplace
Issues concerning use of social networking sites by employers and employees are becoming more and more prevalent. For employers, reviewing employee (or potential employee) sites such as Facebook, may help an employer become aware of potential risks in the workplace. However, this information could also provide employer with knowledge that could lead to a discrimination claim. Restricting and/or monitoring employees’ use of the internet and access to social networking sites may be necessary for productivity and to protect Company information and interests, but could also be an invasion of privacy. All employers should have published policies which adhere to legal guidelines.

Other Issues of Note
Immigration and Customs Enforcement (ICE) is continuing to aggressively target employers who knowingly and recklessly employ an illegal alien workforce. Regular audits of your I-9 compliance are advised.

For assistance in meeting your legal obligations on these issues, contact Jeanne Flaherty or Lynn Ryder at Employer’s Legal Advisor, Inc.

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