In Mendiola v. CPS Security Solutions, Inc., issued on January 8, 2015, the California Supreme Court ruled that security guards are entitled to compensation for all on-call hours spent at their assigned worksites, even when they are engaged in certain personal activities or sleep.
On December 31, 2014, the Court of Appeal for the Second District of California held in an unpublished opinion that employers are not required to relieve employees of all duty during rest periods mandated by California state law. In so holding, the court in Augustus v. ABM Sec. Servs., Inc., No. B243788, 2014 WL 7463154 (Cal. Ct. App. Dec. 31, 2014), reversed the trial court’s award of approximately $90 million dollars in statutory damages, interest, penalties, and attorneys’ fees to the employees.
A Rhode Island graduate student has filed a lawsuit against a textile company, alleging that it discriminated against her because she used medical marijuana. The complaint, filed by the local ACLU chapter on behalf of University of Rhode Island student Christine Callaghan, alleges that Darlington Fabrics Corporation rescinded a paid internship offer because Callaghan was a registered medical marijuana cardholder. According to the complaint, it appeared that Callaghan was going to be given the internship until, during a meeting with a Darlington HR representative, Callaghan disclosed that she suffered from migraines and used medical marijuana to treat her condition—but that she would not bring marijuana with her onto the premises or show up for work after having taken marijuana. A few days after the meeting, the representative contacted Callaghan and told her that Darlington would not be offering her the internship because of her status as a medical marijuana patient. The suit is believed to be the first to invoke the anti-discrimination provisions of Rhode Island’s medical marijuana law. Under the law, schools, employers, and landlords may not “refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” G.L. § 21-28.6-4(c).
As employers in New York were gearing up for distribution of the annual wage notices in January 2015, Governor Andrew Cuomo finally signed the amendment to New York’s Wage Theft Prevention Act that was passed by the legislature back in June and repeals the annual wage notification provision. While the other amendments to the Act will not take effect for 60 days, the Governor’s December 29, 2014 signing statement and the New York Department of Labor make clear that employers are not required to distribute wage notices to their employees this January. The amendment, however, does not relieve employers of their obligation to provide all newly hired employees with wage notices at the time of hiring. In addition, although not specifically addressed in the amendment to the Act, it would be prudent for employers to distribute a revised wage notice when an employee receives a new position with a different compensation structure during his or her tenure with the employer.
The National Labor Relations Board’s (“NLRB”) General Counsel’s Office has again signaled its commitment to expanding the scope of the current test for joint employment. In a move that could have implications for a broad array of franchise relationships, on December 19, 2014, the General Counsel of the NLRB announced that it has issued complaints against both McDonald’s franchisees and McDonald’s USA, the franchisor, as a joint employer. The decision to name McDonald’s as a respondent is consistent with the General Counsel’s recent advocacy that the current joint employment standard is too narrow.
Because of the way the statute is drafted and how courts have interpreted it, employers of current members of the Armed Forces and veterans can sometimes find themselves with unexpected legal exposure under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). The statute imposes various obligations on employers with respect to members of the U.S. military returning to work and also prohibits discrimination against employees and potential employees based on their military service. As 2014 comes to a close, a couple of USERRA cases from this year remind employers of the intricacies of USERRA compliance.
On December 5, 2014, San Francisco enacted two ordinances, dubbed the “San Francisco Retail Workers’ Bill of Rights,” that will extend benefits to part-time retail and food service employees and require certain employers to make schedules more predictable for all employees. The ordinances are believed to affect approximately 35,000 employees in San Francisco (approximately 5 to 6% of the City’s total wage and salary employment) and are also believed to provide the broadest protections in the country in terms of rights for part-time workers and scheduling requirements.
In a game-changing 3-2 decision on December 11, the National Labor Relations Board (NLRB or Board) overruled its 2007 Register Guard decision, which upheld the right of employers to limit employee access to company email systems, calling it “clearly incorrect” and holding that employees have a presumptive right to use their employers’ email systems for non-business purposes, like communications about union organizing, wages and working conditions, during “nonworking time.” Register Guard, which has long been criticized by organized labor, held that an employer may completely prohibit employees from using an employer’s email system for Section 7 purposes, even if they are otherwise permitted access to the email system—without demonstrating any business justification—so long as the ban is not applied discriminatorily.
In Khazin v. TD Ameritrade, No. 14-1689, 2014 WL 6871393 (3rd Cir. Dec. 8, 2014), the Third Circuit affirmed a lower court’s decision compelling arbitration of a Dodd-Frank whistleblower retaliation claim. This is the first circuit court decision to address whether such claims are arbitrable, and the decision is consistent with two district court opinions that have previously addressed the issue.
On December 3, 2014, the U.S. Department of Labor (DOL) released its final rule barring federal contractors from discriminating on the basis of sexual orientation and gender identity. The final rule implements an Executive Order signed by President Obama in July 2014 amending Executive Order 11,246 to include sexual orientation and gender identity as prohibited bases of employment discrimination by federal contractors and subcontractors.