November Updates

Ninth Circuit: USERRA Does Not Prohibit Mandatory Arbitration

On October 14, 2016, the Ninth Circuit stated that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) does not prevent employers from compelling arbitration of employee USERRA claims.

The decision arose from Ziober v. BLB Resources, Inc.  Kevin Ziober signed an agreement with BLB Resources to arbitrate any claims that arose from Ziober’s employment with BLB. When Ziober was recalled for military service overseas, BLB informed Ziober that he would not be restored to his job upon his return.  Ziober sued BLB, but BLB successfully moved to compel arbitration of the claim, in accordance with the agreement Ziober signed.

The Ninth Circuit affirmed the motion to compel arbitration.  USERRA protects veterans returning to civilian life from employment discrimination; however, the Ninth Circuit joins the Fifth and Sixth Circuits in finding that USERRA does not prohibit arbitration of USERRA claims, nor does it supersede the Federal Arbitration Act (“FAA”), which requires courts to “rigorously enforce” arbitration agreements.  In the absence of a Supreme Court ruling, employers are not prohibited from including USERRA claims in mandatory arbitration agreements.

Eleventh Circuit: Applicants Cannot Sue for Disparate Impact Under Specific ADEA Statute

On October 5, 2016, the Eleventh Circuit found that job applicants cannot bring a complaint of disparate impact under § 4(a)(2) of the Age Discrimination in Employment Act of 1967 (“ADEA”), due to the fact that applicants do not have “employee” status.  This decision arose from a rehearing en banc of Villarreal v. R.J. Reynolds Tobacco Company.  The Court reviewed the plain text of § 4(a)(2), which refers specifically to “employees”;  an employer cannot “limit, segregate or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age” (emphasis added).  However, employers should still remain cautious when taking adverse employment actions, as it may still be possible for a job applicant to bring a complaint under a different section of the ADEA.

California: Cal/OSHA to Develop Indoor Heat Illness Standard

We previously reported on a California Court of Appeal’s decision in Castro-Ramirez v. Dependable Highway Express, in which the Court stated that employers have a duty to reasonably accommodate employees who are associated with a disabled person.  Recently, the Court of Appeals reheard the case.

The Court stated that, at this time, it did not need to decide if California requires employers to reasonably accommodate employees who are not themselves disabled, but are instead associated with a disabled individual, as the plaintiff abandoned his failure to accommodate claim.  However, the Court still stated that California recognizes claims for associational disability discrimination, and the facts of the case were strongly suggested that Castro-Ramirez’s termination was influenced by his supervisor’s desire to avoid accommodating Castro-Ramirez’s disabled son.  For that reason, the Court stated it upheld the reversal of summary judgment in favor of the employer.

This case is suspected to head for review before the California Supreme Court.  Until then, employers should still tread carefully in cases where accommodations for disabled family members are requested, and should consider consulting legal counsel for guidance on handling such requests.

California: Monetary Value of Accrued Vacation not Needed on Wage Statements

California regulations require employers to provide their workers with wage statements that contain specific pieces of information, such as the employer’s legal name and address, gross and net wages, inclusive dates for the pay period, etc.  Failure to include the required information can lead to employee claims.

On October 20, 2016, a California Court of Appeals stated that California law does not require employers to list the monetary value of an employee’s accrued vacation time on the wage statement.  The court explained that employees are not entitled to payment of the accrued time off until termination of employment, and therefore vacation time did not qualify as a wage to be itemized on the statement.

Interested employers can read the full text of the court’s Opinion here.

California: (More) Amendments to the Fair Pay Act – Prior Salary Not Valid Justification

Effective January 1, 2017, AB 1676 prohibits California employers from using an employee’s prior salary history as the sole justification for a wage differential.  The bill codifies existing law and upholds a previous Supreme Court decision.  If a wage differential exists between employees of different genders performing substantially similar work, employers should not rely on the employees’ past salary levels as the only reason for the differential.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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