Bill 404 To Protect Those That Provide Care

 

IF ENACTED SB404 WILL WIDEN THE SCOPE OF FEHA, PROTECTING THOSE THAT PROVIDE CARE FOR FAMILY MEMBERS

Senate Bill 404 is a proposed amendment to the Fair Employment and Housing Act (“FEHA”), California’s primary anti-employment discrimination law.  If enacted, SB 404 would add another category to the already lengthy list of protected characteristics under the FEHA – “familial status,” which is currently defined as “an individual who provides medical or supervisory care to a family member.” Neither “medical care” nor “supervisory care” is defined in the Bill, and, given the California Supreme Court’s statement that the FEHA must be liberally interpreted in favor of employees, these phrases may be construed to encompass a broad variety of everyday activities.   Moreover, like the other provisions of the FEHA, this Bill would also apply to people who are associated with others who are providing such care, or who are simply perceived as providing such care – even if they aren’t.

Beware of Bobs

Bob is a great name.  Its simplicity engenders a certain kind of reaction in us all.  We trust Bobs. We like to hang out with Bobs, maaaaybe even play a friendly game of parcheezy avec Bob. Bobs probably inspired the lyrics “just the good ol’ boys, never meanin’ no harm …”  A Bob is someone you wouldn’t mind having over at a family gathering; someone you could always count on to serve you eggs and pancakes the American way (see also Big Boy/Bob’s).  Simply put, in Bob we trust … or trust-ed …

Lately, there have been some serious problems in Bobland.  Bob Filner, mayor of “America’s greatest city,” has some explaining to do.  Filner’s former communication director filed a lawsuit this month alleging the mayor “has disgraced himself and the office he holds by engaging in numerous instances of sexual harassment.”  In court documents, she described finding herself alone in an elevator with the mayor in March when he pulled her toward him, put an unwanted arm around her and said, “I am so in love with you. Wouldn’t it be great if you took off your panties and worked without them?”‘ When she pushed him away, she alleged, he kissed her on the cheek.  In April at a meeting open to the public in City Hall, she alleged, Filner put her in a headlock and dragged her toward a table with doughnuts, telling her he loved her and asking, “When are we going to get married? Wouldn’t it be great if we consummated the marriage?”  How far the mighty Bobs have fallen.

If you work with a “bad” Bob, you should contact a lawyer immediately to protect your rights.

Employees Seating Requirements

To Seat Or Not To Seat

A popular wage and hour claim surrounds employee seating at retail stores. In California, employees required to stand for extended periods of time at work may be able to sue their employers if they are able to prove the nature of the work reasonably permits the use of seats. However, what constitutes “nature of work” and “reasonably” are not clearly defined.

Retail stores, like CVS Pharmacy and Kmart, have been sued for failing to provide suitable seating to its employees. In the case against Kmart, employees recommended a reconfiguration of their work station so adequate seating could be provided. The court rejected this proposal but endorsed a “lean-stool,” which would allow employees to lean while working and move from a leaning to a standing position with ease.

Kmart strongly argued against the seating claim pointing to customer service. Kmart stated, “its cashiers should be required to stand in order to project a ready-to-assist attitude to the customers waiting in line, all of whom are already standing.” Finding this argument persuasive, the court held “where an employer requires its employee to stand for good customer service and relations (with appropriate rest breaks), then this should be permitted so long as the rationale is genuine and grounded in reason.”

This is certainly not the end of the seating battles. As courts continue to weigh in on this front, employees should take a “seat” until more guidance is provided by the courts on this issue.

Arbitration Agreements

Arbitration Agreements – Sleight of Hand Not Allowed

Avery v. Integrated Healthcare Holdings

The California Court of Appeal recently considered whether or not plaintiffs seeking to pursue claims as a class for wage and hour violations could be compelled to arbitrate claims based on a series of documents purporting to reflect acknowledgements to arbitrate such claims.  The Court of Appeal affirmed the trial court decision finding no enforceable arbitration agreement existed because the incomplete and confusing patchwork of documents Defendant relied upon were not sufficient to establish an agreement to arbitrate.  The Court reasoned that Defendant needed to demonstrate that plaintiffs agreed to the specific arbitration agreement that Defendant contended bound plaintiffs to arbitrate their claims.  Because none of the documents referred to the specific employee handbook used as the source of the arbitration policy, the Court found that even if plaintiffs signed the acknowledgements, the acknowledgements were not sufficient to establish that plaintiffs had agreed to the arbitration policy.

Celebrity Chef’s Restaurant Not Protected

Celebrity Chef’s Restaurant Not Protected From Wage And Hour Class Action

Even celebrities should be mindful of California’s wage and hour laws.  Gordon Ramsay, well-known restaurateur and outspoken television personality, is learning the hard way as his restaurant Fat Cow located at the Grove shopping center in Los Angeles was sued for wage and hour violations.

Two former employees filed a class action lawsuit against Chef Ramsay’s restaurant – Fat Cow – alleging claims for failure to pay minimum wages, failure to pay overtime wages, failure to provide meal and rest periods or compensation in lieu thereof, failure to provide accurate itemized wage statements, failure to pay all wages due upon separation of employment and for violation of the unfair competition law.  The class will likely include servers and baristas that were employed by Fat Cow in California from at least 2012 and 2013.

Chef Ramsay’s attorneys claim these issues originated from previous management.  However, relying on that defense would only place Chef Ramsay in further hot water as California law confirms that employers have a duty to comply with wage and hour requirements.