18
HR
West
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PREGNANCY
DISCRIMINATION AND
ACCOMMODATION
The topic of pregnancy discrimination and
accommodation was at the forefront this year, largely
due to the focus of the U.S. Equal Employment
Opportunity Commission (EEOC). In July 2014,
the EEOC released updated guidance on an
employer’s obligations under the federal Pregnancy
Discrimination Act (PDA). The EEOC takes the
controversial position that the PDA requires
employers to broadly provide job accommodations for
pregnant and lactating workers, even if the employee
is not disabled by pregnancy. The EEOC also was
briskly filing pregnancy discrimination lawsuits in
2014, including filing six such cases in September
alone. The EEOC has repeatedly emphasized that
pregnancy discrimination and accommodation will
continue to be a priority enforcement area.
SEXUAL ORIENTATION
AND GENDER IDENTITY
In June 2014, the U.S. Department of Labor
announced proposed rules to revise the definition
of “spouse” under the Family and Medical Leave
Act (FMLA) to make it clear that the FMLA applies
to legally married same-sex spouses, regardless
of where they live. Employers in California should
note that while LGBT protections are still evolving
under federal law, the California Fair Employment
and Housing Act (FEHA) includes sexual orientation,
gender identity and gender expression as protected
classes. In July, a Sacramento Superior Court ruled,
in a case of first impression, that a transgender
employee could pursue a claim that he was unlawfully
denied access to the men’s restroom and changing
facilities during his transition from female to male.
WORK RULES,
SOCIAL MEDIA & THE NLRA
In 2014, the National Labor Relations Board
(NLRB) continued to take aim at employer work
rules – in union and non-union workplaces – that
could interfere with employee rights to engage in
protected concerted activity under the National
Labor Relations Act (NLRA), including rules
regarding workplace civility and professionalism,
nondisclosure and confidentiality, email use, and
more. As we went to press, the NLRB issued a
controversial decision that overturns prior Board
precedent and expands employee rights to use
employer email for nonbusiness purposes, including
communicating about union organizing. In particular,
the NLRB ruled that when an employer grants
access to the employer’s email system, employees
must be permitted to use it for statutorily protected
communications on nonworking time.
PROPOSED FEHA
AND CFRA REGULATIONS
The proposed California Family Rights Act (CFRA)
regulations, issued in February 2014, are geared
to conforming to some aspects of the federal
Family and Medical Leave Act (FMLA) regulations
and clarifying aspects of the existing CFRA rules.
The regulations could be finalized sometime in
2015. In October 2014, the FEHC also proposed
updated regulations regarding discrimination
and harassment. Among the key provisions is
a new section, “Harassment and Discrimination
Prevention and Correction,” which would mandate
that employers have detailed written sexual
harassment and discrimination policies and obtain
acknowledgments of receipt from employees. The
proposal also addresses the new requirement
(see A.B. 2053, in the legislative update section
below) that will require employers to add content
on “abusive conduct” to their A.B. 1825 training
programs for supervisors.
NOTABLE COURT DECISIONS
As usual, the U.S. Supreme Court and California
Supreme Court issued a number of employment
law-related decisions during the past year. Here is
an overview of notable cases from the U.S. Supreme
Court, California Supreme Court, and California
Courts of Appeal.
United States Supreme Court Decisions
•
Integrity Staffing Solutions, Inc. v. Busk:
The
Court has unanimously held that employee
time spent waiting for and undergoing security
screens is noncompensable under the federal
Fair Labor Standards Act (FLSA). California
employers should use caution in relying on this
decision; California uses its own standard for
compensable time, and it is uncertain whether
the state courts would look to this new ruling for
guidance in interpreting California law.
• Burwell v. Hobby Lobby Stores, Inc.:
The
Court ruled that requiring closely held for-profit
corporations to pay for insurance coverage for
contraception under the Affordable Care Act
violated a federal law protecting religious freedom.
• NLRB v. Noel Canning:
The Court affirmed that
President Obama’s January 4, 2012 recess
appointments to the National Labor Relations
Board were unconstitutional, thus invalidating all
Board decisions issued during the January 2012
to January 2013 period.
• Sandifer v. U.S. Steel Corp.:
The Court reviewed
the meaning of “changing clothes” under a Fair
Labor Standards Act (FLSA) provision specifying
that employees shall not be compensated
for “any time spent in changing clothes or
washing at the beginning or end of each
workday which was excluded from measured
working time... by the express terms of or by
custom or practice under a bona fide collective-
bargaining agreement applicable to the particular
employee.” The Court held that time spent
donning and doffing protective gear involved
“changing clothes” and was noncompensable.
• Lawson v. FMR LLC:
The Court expanded the
scope of employer coverage under Sarbanes-
Oxley’s (SOX) whistleblower protection, ruling
that the SOX whistleblower provision prohibits
private contractors and subcontractors from
retaliating against its employees for their
attempts to blow the whistle on misconduct by
the public companies the contractor serviced.
California Supreme Court Decisions
• Ayala v. Antelope Valley Newspapers, Inc.:
The California Supreme Court held that whether
a newspaper’s carriers were employees or
independent contractors could not be decided
in one stroke as to the entire class because
the evidence showed substantial variation in
the degree of control the newspaper exercised
over its carriers’ work, and the issue of “degree
of control” is the primary factor in assessing
whether a worker is an independent contractor
or an employee. The Court emphasized that the
key issue is whether the hirer has the right to
control the work, not whether the hirer actually
exercises that right.
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