All posts by Trisha Route

NEW CASE: 9th Circuit Court Appeals Rules Federal And State Background Check Disclosure Forms Are Required In California

In a recent decision (Gilberg v. California Check Cashing Stores, LLC), the Ninth Circuit Court of Appeals has held that employers must provide its applicants and employees with separate federal and state Fair Credit Reporting Act (FCRA) disclosure forms. The FCRA requires a “stand alone” disclosure that is “clear and conspicuous.” In other words, the combining any state disclosure notice with the FCRA would be a violation of the law.

This issue was brought to light when an undisclosed party issued a disclosure notice which combined the FCRA disclosure with several short paragraphs outlining the rights of applicants in seven other states, that included California. The Ninth Circuit confirmed to satisfy the FCRA “stand alone” document requirement the notice form must consist solely of the FCRA disclosure. It further clarified that the FCRA disclosure cannot be combined into a single document with the employees written authorization to conduct the background check.

Employer Takeaway

Employers who operate in the following states Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington should ensure that their disclosure forms are compliant with the Ninth Circuit’s recent ruling on the matter.

In addition, employers operating in other states or who utilize a third party must ensure they are compliant as well. Failing to comply can prove to be costly to an employer due to possible fines and litigation.

NEW CASE: Explains The Importance of Squashing Rumors And Gossiping At The Water Cooler

In a recent case (Parker v. Reema Consulting Services)the Fourth Circuit Court of Appeals held that employers may be liable under Title VII of the Civil Rights Act for failing to effectively address and stop gossip and rumors of an alleged sexual relationship between a female employee and a male supervisor.

Background
Evangeline Parker began working for Reema Consulting as an entry level clerk, in December 2014. During her employment with the company she was promoted six times with her final role as Assistant Operations Manager being awarded in March 2016. After her last promotion to Assistant Operations Manager, vicious rumors started circulating that Parker was afforded her position because she had a sexual relationship with a high-ranking male manager.

The rumors were further exacerbated when the high-ranking manager held a meeting with a group of employees about the rumor. He even went so far as to blame Parker for bringing the rumors to the workplace.

A month after Parker had complained to Human Resources about the vicious rumors and the managers behavior, her employment was terminated. Parker later filed a lawsuit claiming sexual harassment and retaliation claims under Title VII.

The Holding

The Court of Appeals found that the alleged hostile work environment was enough to justify Parker’s claims; thereby reversing the lower court’s previous dismissal of this lawsuit.

The Court believed that the “the sex-based nature of the rumor and its effects” created a hostile work environment for Parker.  This belief was supported by several factors.

First, the Court found that the rumors about Parker “plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labeled as ‘sluts’ or worse, prostitutes selling their bodies for gain.”

Second, the Court found that the alleged harassment reported by Parker was in fact severe and pervasive enough based on the behavior lasting approximately two months. Because the claim met the elements of sexual harassment, Parker’s complaint was protected activity. Therefore, they also reversed the ruling on the retaliation claim.

Employer Take Away

For years the pervasive ideology regarding the treatment of others has been, “Treat others the way you want to be treated”.

However, as the Federal Appeals Court has proved, this has evolved to, “Treat others the way they WANT to be treated.”

Frivolous accusations aside, it is incumbent on employers to exercise due diligence to protect the dignity and concerns of all under their employ.

As a result, all accusations should be investigated and addressed with the presumption of true merit until it can be significantly and thoroughly determined the accusation is unfounded. This due diligence will serve as protection in the event of future litigation and at a minimum serve to foster a sense of validation and dignity in all employees in an organization.

California Employers — Are You Providing School Activities Leave?

Did you know that in California, companies may be required to grant leave to employees to attend their children’s school activities.

School is back in full swing after the holidays, which also means parent teacher conferences, school assemblies, and other school-related activities are being scheduled.

With employees requesting time off to attend events at their child’s school, California employers may not be aware of two lesser known statutes (California Labor Code sections 230.7 and 230.8) that give parents (and other parental figures) of school-aged children protected time off to attend their child’s related school activities.

Who is a covered employer and employee?

Labor Code section 230.7 applies to all California employers regardless of size.  While Labor Code section 230.8 only applies to employers employing 25 or more employees at a single location.

What is a “parent”?

A “parent” is defined as a natural parent, guardian, stepparent, foster parent, or grandparent of a child of the age to attend kindergarten or grades 1 through 12 or a licensed child care provider.   It is important to note that this does not apply to adult children.

What types of leave may an employee be entitled to?

Under Labor Code section 230.7, employers are required to provide parents of school-aged children with time off to appear at their child’s school for disciplinary purposes.

Under  Labor Code section 230.8 , parents of covered employers may take up to 40 hours per year of job-protected time off to find, enroll, or reenroll their children in school or with a licensed child care provider, or to participate in activities of the school or child care provider. In order to take the protected time off, reasonable notice must be given to the employer before the scheduled absence.

In addition, any time taken for the reasons described above must not exceed eight (8) hours in any calendar month of the year. The code does not define child related school and care activities; however broad enough to suggest field trips, parent- teacher conferences and school assemblies are included.

Parents may also be entitled to 40 hours of job-protected leave for unscheduled absences for “emergency” situations.  Emergency situations are defined as a situation where a child cannot stay in the care of the school or child care provider for the following circumstances:

  • the school or child care provider has unexpectedly requested that the child be picked up,
  • behavioral or discipline problems,
  • unexpected closure or unavailability of the school or child care provider,
  • natural disasters such as fire, earthquake, or flood.

Taking leave for this purpose does not negate the parent’s obligation to inform employers of their unscheduled absence as soon as practicable.

 Can employers require Documentation?

An employer may request the employee provide documentation from the school or child care provider to prove the employee took time off for the reasons described above on a particular date and time.

How does other employment policies apply?

Employees may use any accrued/unused vacation or PTO for scheduled time off related to enrollment or school and child care organized activities. Employers are not required to offer paid time off independently to accommodate absences under section 230.8.

 

NEW CASE: Employee’s Voluntary Use Of Company Vehicle For Commuting Is Not Compensable

In a recent case, (Hernandez v. Pacific Bell Telephone Company) the California Court of Appeal clarified a long-standing law that an employee’s voluntary use of a company vehicle during normal commute is not be considered as “hours worked” for purposes of compensation

Background

The company has issued employees who performed home installations use company vehicles equipped with company tools that employees were required to use for installation jobs.  Prior to 2009, these employees began and ended their work day in the company parking garage, where the employees picked up and returned their company vehicle on a daily basis.  Employees were paid for the time spent travelling from the garage to their first job of the day and the time spent travelling back to the garage after their last job, but they were not paid for the time spent travelling between the garage and their residence.

In 2009, the company started a program where employees were able to voluntarily take the company vehicle home.  This enabled employees who chose to participate in the program to drive from home to the first job of the day and, following the last job of the day, drive back to their residence – bypassing the company parking garage. Continue reading NEW CASE: Employee’s Voluntary Use Of Company Vehicle For Commuting Is Not Compensable