Women-Owned Business


March 01st, 2018/By Admin/In Blog, SBSBLOG, Uncategorized

Topics for this Month include:

NLRB and DOL Backtracking

DLSE Issues Template Immigration Audit Notice

Proving Discrimination Based on Obesity Just Became Easier

When Class Action Waivers Are Not Enforceable in California

Disciplining Employees for the Way They Whistleblow

– And more!


NLRB Does a “360” on Joint Employment Rules

In honor of the Winter Olympics. . . the NLRB has done a “360” or a “single toeloop” on its stance as to when a business is considered a “joint employer.”  In mid-December, a split Board overruled the 2015 Browning-Ferris decision and reinstated the Board’s prior test.  However, on February 26, the Board unanimously vacated the ruling due to a question as to whether one of the Board members had a conflict of interest in participating in the ruling.  Thus, for now, Browning-Ferris stands, but perhaps by next month the Board will do a “triple Axel” and reverse its stance again.

NLRB Relaxes Scrutiny Over Employee Handbook Policies

With the new full Board in place, on December 14, 2017, a 3-2 split NLRB overturned its employee-friendly standard in reviewing the legality of employment policies previously announced in Lutheran Heritage Village-Livonia (i.e., whether the policy can be “reasonably construed” to bar workers from exercising their rights to engage in protective collected activity), and retreated to a balanced analysis of weighing the policy’s impact on workers’ rights with the employer’s business justifications for implementing the policy.

Department of Labor Revises Its Stance on Interns

On January 5, 2018, the DOL adopted a seven-factor test in determining when unpaid internships are permitted under the FLSA, focusing primarily on which party is the “primary beneficiary” of the relationship.  The seven-factor test can be found here: https://www.dol.gov/whd/regs/compliance/whdfs71.htm.  However, keep in mind this is under federal law only; California has its own criteria.

DOL Revives 17 Withdrawn Opinion Letters

On January 5, 2018, the DOL reissued 17 previously withdrawn 2009 opinion letters on a variety of issues, renumbered as FLSA2018-1 through FLSA2018-17.  Topics range from the salary basis test and whether a bonus must be included in determining the regular rate for overtime calculations to the exempt status of civilian helicopter pilots.  The opinion letters can be found here: https://www.dol.gov/whd/opinion/flsa.htm.

Electronic Reporting of Workplace Injuries and Illnesses Now in Effect

After an initial delay, effective December 15, 2017, employers are now required to report their injury and illness data electronically to OSHA.

EEO-1 Survey Due by March 31, 2018

Employers with 100 or more employees, and federal contractors and first-level subcontractors with 50 or more employees and a contract worth at least $50,000, have until March 31, 2018 to submit their 2017 EEO-1 reports.  More information can be found on the EEOC’s website: https://www.eeoc.gov/employers/eeo1survey.

EEOC Wellness Rules to be Vacated in January 2019

A federal district court has ruled the EEOC’s regulations on employer wellness programs are invalid.  However, the court noted to vacate the regulations immediately would wreak havoc on health plans, and therefore the regulations will be vacated effective January 1, 2019.  It is possible the EEOC will revise the regulations before then, so stay tuned.

Labor Commissioner Publishes Immigration Notice Template

To help employers comply with California’s new Immigrant Worker Protection Act (Labor Code section 90.2), the Labor Commissioner has issued a sample of the notice employers are required to give workers within 72 hours of receiving notice of an impending immigration compliance inspection or audit, and a series of FAQs. The sample notice can be found at http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf. The FAQs can be found at http://dlse.ca.gov/dlse/AB_450_QA.pdf.


Burden Eased to Prove Obesity is a Disability

In Cornell v. Berkeley Tennis Club, the plaintiff was a severely obese woman who was fired after working at a tennis club for 15 years.  The plaintiff contended her termination was based on her disability and the club failed to accommodate her.  It has been a longstanding rule that obesity can constitute a disability if it is caused by a physiological condition affecting one or more of the basic bodily systems and limits a major life activity. Cassista v. Community Foods, Inc. (1993) 5 Cal. 4th 1050.  However, the court recognized the EEOC and recent federal court decisions have relaxed the burden of proving obesity to be a disability under federal law.  The court ruled that, by extension, the burden also has eased under the FEHA.  Accordingly, on summary judgment, an employer must demonstrate there is no reasonable possibility the plaintiff could prove the obesity has a physiological cause. Thus, apparently, employers now can be liable for discriminating against an employee based on their weight, even if the employer has no idea whether the obesity is caused by a physiological condition.  On the other hand, the court ruled the employer had no obligation to accommodate the plaintiff’s condition because the employer did not actually know the plaintiff’s obesity was caused by an underlying condition (but, if the plaintiff had claimed the employer perceived her as having a disability, then the employer would have had an obligation to accommodate).

Workers Employed on the Outer Continental Shelf are Covered Under State Wage Laws

In Newton v. Parker Drilling Management Services, Inc., an employee worked on a drilling platform on the outer Continental Shelf off the coast of Santa Barbara.  After being terminated, the employee sued for various state wage and hour claims.  The employer contended California’s laws do not apply to employees working on the outer Continental Shelf. The Ninth Circuit held the Outer Shelf Continental Lands Act, 43 U.S.C. §1333(a)(2)(A), permits enforcement of state wage and hour laws as “surrogate federal law” as long as the laws are “applicable and not inconsistent” with federal law.  State laws which are more protective than the FLSA are “not inconsistent” with federal law.  Accordingly, in this case, the Ninth Circuit found California’s minimum wage and overtime laws applied to the worker.  In addition, the absence of a law under the FLSA does not exclude the possibility of state law on the subject becoming “surrogate federal law.”  Thus, the Ninth Circuit remanded to the lower court the issues of whether California’s meal period, final pay and itemized wage statements laws are “applicable and not inconsistent” with the FLSA.

Union Vacation Trust Fund Payments Are Not Subject to Wage Statement Requirements

Plaintiff Steve Mora alleged his itemized wage statements violated Labor Code §226(a) because payments his employer made to the union vacation trust fund reflected on his paystubs did not include the applicable rates of pay and hours.  The First Appellate District ruled these payments do not constitute “wages” because they are passed directly through to the union’s vacation trust fund and therefore are not subject to the requirements of Labor Code §226(a).  Mora v. Webcor Construction, L.P.

Non-FAA Arbitration Agreements are Subject to California’s Class Action Waiver Rules

Plaintiff Tony Muro worked for a staffing company, and was assigned to drive trucks over interstate lines for its client.  Muro filed a class action against the company for alleged wage and hour violations.  He had an arbitration agreement expressly governed by the Federal Arbitration Act with a class action waiver.  However, the FAA does not apply to transportation workers. Thus, the Fourth Appellate District concluded, whether the arbitration agreement and class action waiver are enforceable was to be determined under California law, not federal law.  Muro v. Cornerstone Staffing Solutions, Inc.  Under the rule Gentry v. Superior Court (2007) 42 Cal. 4th 443, class action waivers in California are unenforceable in certain circumstances. Although Gentry was overruled by federal law under the FAA, here, because only state law applies, the trial court concluded, and the appellate court agreed, the circumstances were such in this case that the arbitration agreement was unenforceable.

The Way a Whistleblower Whistle Blows Can Be Subject to Discipline

In Duggan v. Department of Defense, an employee engaged in whistleblowing protected by the Whistleblower Protection Act about misconduct at the Defense Contract Audit Agency (“DCAA”).  However, the DCAA found the plaintiff’s behavior while making these statements to be rude, disrespectful and disruptive. Adverse employment actions were taken against the plaintiff in response to his behavior. The plaintiff alleged the actions constituted retaliation for engaging in protected activity. The Ninth Circuit disagreed, holding an employer has a defense if it proves by clear and convincing evidence it would have taken the same personnel action even if the disclosures were not protected.  Factors to consider include: (1) the strength of the evidence in support of the action taken; (2) the existence and strength of a decision maker’s motive to retaliate; and (3) any evidence the agency takes similar actions against similarly situated non-whistleblowing employees.  Moreover, an employee may be disciplined for the way in which the protected disclosure was communicated – i.e., whether it was done in a disrespectful or disruptive manner.  In this case, the DCAA had sufficient evidence to establish it would have disciplined the plaintiff for his behavior irrespective of whether the statements he made were protected. Keep in mind this was based on federal law – California may have its own opinion on this.


[This article is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]

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