Editor in Chief

Bernadette M. O'Brien is an attorney at law in California.

She is the author of the popular Lexis Nexis publication Labor and Employment in California; A guide to Employment Laws, Regulations and Practices Second Edition which has been in publication since 1992. The book covers an array of employment related issues including discrimination, sexual harassment, wage and hour, family Medical Leave Act, and Privacy in the workplace.

She is of counsel with the Law Offices of Floyd, Skeren & Kelly, LLP in the firm's Sacramento office.

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Rene Thomas Folse, JD, Ph.D. is an attorney at law and licensed psychologist in California.

He has practiced workers' compensation law for 35 years. His focus of practice involves claims of mental health injury where forensic psychology is involved in the evaluation of the claim. He has been an instructor and lecturer for many organizations and educational institutions and teches continuing education courses for attorneys, physicians and psychologists.

The EmploymentLawAcademy is pleased to offer our users FREE access to California Unemployment Insurance and Disability Compensation Programs - Online Version by David W. O'Brien, California Unemployment Insurance Administrative Law Judge (Retired). The paper version of this text contains nearly 1000 pages of information and law covering the California unemployment and disability Insurance claim. The online version may be searched by keywords, or you may navigate from chapter to chapter.

Recent Employment Law News for Sep 05, 2015

Uber Drivers Granted Class Action Status
Wed, 02 Sep 2015 11:51:27 - Pacific Time

A handful of Uber drivers were granted class-action status in their lawsuit against the company, raising the stakes for Uber if the drivers win their case. The drivers, Thomas Colopy, Matthew Manahan and Elie Gurfinkel, are suing Uber on the grounds that they should be labeled employees and not independent contractors. On Tuesday, U.S. District Judge Edward Chen said the drivers, who face a trial by jury, can proceed as a class with limits. To join the class, drivers also must have signed up to drive directly with Uber or an Uber subsidiary, among other restrictions.It's unclear how many of Uber's 160,000 past and current California will qualify for the class. In an emailed statement, Uber said it will appeal the decision. Read more here.

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NLRB Establishes New Standard for Determining “Joint Employer” Status
Tue, 01 Sep 2015 00:59:50 - Pacific Time

The National Labor Relations Board (NLRB) published a decision establishing a new legal standard to be used in determining if a business is a “joint employer” of another’s employees. Under this new standard, employers may have new obligations and liabilities under federal labor law in relation to employees of a variety of other companies with which they do business – their contractors, their suppliers, their franchisees, their subsidiaries, and more. The Board’s new “joint employer” standard is broad and vague. In revising the joint employer test, the Board rejected a 30-year old legal standard that focused on the actual exercise of direct control over another business’ employees. Instead, it has declared that “joint employer” status can be created by the mere possession of authority to control some essential term or condition of employment of another business’ employees, even if that authority is never actually exercised, and that this analysis includes indirect as well as direct control. The Board may now find that two or more businesses are joint employers of the same employees if they “share or codetermine those matters governing the essential terms and conditions of employment.” Read more here. 

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New Quarterly ‘Digest of EEO Law’ Issued By EEOC
Tue, 01 Sep 2015 00:37:44 - Pacific Time

The U.S. Equal Employment Opportunity Commission (EEOC) today announced the latest edition of its federal sector Digest of Equal Employment Opportunity Law. This quarterly publication, prepared by EEOC's Office of Federal Operations (OFO), features a wide variety of recent Commission decisions and federal court cases of interest. Additionally, it contains a special article entitled Gender Identity and Sexual Orientation Coverage Under Title VII Case Law Update: Review of Pre- and Post-Macy Title VII Protections for LGBT Employees." The article on Gender Identity and Sexual Orientation Coverage contains an overview of recent Commission decisions in this evolving area of law," said OFO Director Carlton M. Hadden. "The article should provide helpful information to our stakeholders when addressing claims of discrimination filed by LGBT employees." The August 2015 edition of the Digest contains summaries of noteworthy decisions issued by EEOC. Read more here.

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EEO-1 Survey for 2015 Now Open
Fri, 28 Aug 2015 17:00:21 - Pacific Time

The U.S. Equal Employment Opportunity Commission (EEOC) has completed its mailing of the 2015 EEO-1 survey notification letters, the federal agency announced today. The EEO-1 is an annual survey required to be filed by all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a contract or subcontract of $50,000 or more. The filing of the EEO-1 report is not voluntary, and is required by federal law.  The filing deadline is September 30, 2015.  The EEO-1 report provides valuable employment data by race/ethnicity, gender and job categories, and is used by researchers, private attorney and human resource staff in developing affirmative action plans and in the Commission's enforcement of Title VII of the Civil Rights Act of 1964.Employers who meet the criteria listed above, or who filed the EEO-1 report in 2014 and have not received the 2015 EEO-1 notification letter by the end of August 2015, should immediately contact the EEO-1 Joint Reporting Committee at 1-877-392-4647 (toll-free) or e-mail at e1.techassistance@eeoc.gov. For more information, refer to the EEOC's EEO-1 survey website for EEO-1 reference documents, i.e. sample forms, EEO-1 Instruction Booklet, Q&As, Fact Sheet and EEO-1 Job Classification Guide. The website address is http://www.eeoc.gov/employers/eeo1survey.

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Court Awards Over Half Million Dollars For Alleged Religious Discrimination
Fri, 28 Aug 2015 13:32:47 - Pacific Time

The U.S. Equal Employment Opportunity Commission (EEOC) has won a victory in federal court in an employment discrimination lawsuit against Consolidation Coal Company and its parent company CONSOL Energy, Inc. On January 15, 2015, a unanimous jury of seven decided that CONSOL Energy, Inc. and Consolidation Coal Company violated federal law when they allegedly forced a long-time employee to retire because they refused to accommodate his religious beliefs, which prevented him from submitting to a biometric hand scanner for tracking attendance, and awarded $150,000 in compensatory damages. In June, the federal court conducted a two-day, non-jury evidentiary hearing to determine lost wages and benefits and injunctive relief, and on August 21, 2015, the federal court issued an order awarding a total of $586,860 in lost wages and benefits and compensatory damages, and permanently enjoining the companies from committing similar acts in the future in violation of Title VII.

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CA Labor Commissioner Cites Janitorial Company Almost $460,000 for Alleged Wage Theft
Mon, 24 Aug 2015 19:27:45 - Pacific Time

California Labor Commissioner Julie A. Su has issued citations of $459,573 to a janitorial employer after an investigation uncovered alleged wage theft violations affecting 12 workers, many of them recent immigrants from El Salvador. Norcal Floor Services, Inc., based in North Highlands, paid the janitors an average of $7.53 per hour. The investigation and a two-year pay audit from June 2012 to June 2014 revealed that managers allegedly threatened to fire workers who complained about working up to seven days in a row every week, for up to 9 hours a day, without breaks. Read more here.  

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Target Corporation to Pay $2.8 Million For Alleged Discrimination
Mon, 24 Aug 2015 19:19:54 - Pacific Time

Target Corporation, has agreed to pay $2.8 million to resolve a charge of discrimination filed by the U.S. Equal Employment Opportunity Commission (EEOC). Based on an investigation, the EEOC found reasonable cause to believe that three employment assessments formerly used by Target disproportionately screened out applicants for exempt-level professional positions based on race and sex.  According to the EEOC, the tests were not sufficiently job-related and consistent with business necessity, and thus violated Title VII of the Civil Rights Act of 1964, EEOC found. In addition, the EEOC found that one of the assessments Target formerly used in its hiring process also violated the Americans with Disabilities Act (ADA).  The EEOC determined that this particular assessment performed by psychologists on behalf of Target was a pre-employment medical examination.  Employers are prohibited by the ADA from subjecting applicants to medical examinations prior to an offer of employment. Read more here.

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Misclassification of Employees is a Major Enforcement Focus of the DOL
Wed, 19 Aug 2015 19:03:00 - Pacific Time

According to a recent article on the U.S. Department of Labor’s (DOL) website (www.dol.gov) if an employer misclassifies employees they will “face consequences” because "misclassification is workplace fraud, plain and simple.” The DOL article, which is set forth below, shows how costly such consequences can be for employers. 

Two recent and very significant legal victories for California workers send a strong message to employers nationwide: if you misclassify your employees, you will face the consequences.

Misclassification is a practice used by some employers to cut costs by declaring their workers to be independent contractors — ducking their obligations to pay at least the minimum wage and overtime pay, and legally required contributions to unemployment insurance and workers' compensation funds. These employers also fail to remit payroll taxes, resulting in huge losses to state treasuries, and the federal Social Security and Medicare programs.

The U.S. Department of Labor, which has made combatting worker misclassification a major focus of its enforcement efforts, has announced that federal courts have ruled against two Bay Area companies and sided with their employees after investigations revealed that the companies deliberately misclassified the workers as independent contractors to cheat them out of their wages and other critical workplace benefits. 

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