Discussion

In Murray v. UBS Securities, LLC, the Supreme Court stated that a whistleblower does not need to prove that an employer acted with retaliatory intent when invoking the protections of the Sarbanes-Oxley Act of 2002 (SOX). Instead, a plaintiff only needs to show that their protected whistleblower activity was a “contributing factor” in their termination. Upon this showing, the burden transfers to the defendant to prove it would have terminated the plaintiff even absent the protected activity.

In this case, the plaintiff worked as a research strategist in a role that required him to certify that his reports to the employer’s customers were independently produced and reflected his own views. The employee informed his supervisor “that two [company leaders] were engaging in what he believed to be unethical and illegal efforts to skew his independent reporting,” and the employer terminated his employment shortly thereafter. The employee filed suit, alleging his termination was in retaliation for expressing his concerns.

In deciding the case, the Supreme Court reasoned that if an employer takes any adverse action because of an employee’s whistleblowing activity, that action constitutes “actionable discrimination,” and the employer’s lack of retaliatory intent is irrelevant.  In other words, the term “discrimination” does not necessarily require retaliatory intent. This decision also aligns with the Court’s interpretation of Title VII’s discrimination framework. Once the plaintiff has made a showing that their whistleblower activity was a contributing factor in their termination, the plaintiff must still demonstrate causation between the whistleblower activity and the adverse action taken by the employer.

Action Items

1. Review anti-discrimination, retaliation and harassment policies for compliance.
2. Update company reporting procedures to confirm employee complaints and/or concerns are properly collected, investigated, and rectified.
3. Have appropriate personnel trained on how to handle and respond to employee complaints and concerns.
4. Engage a third-party investigator when necessary to ensure whistleblower complaints and investigations are handled properly.
5. Consult with legal counsel before taking adverse action against employees who have submitted a work-related complaint, whether formal or informal.

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. © 2024 ManagEase

Discussion

In Mundell v. Acadia Hospital Corp., the First Circuit Court of Appeals stated that the Maine Equal Pay Act does not require a showing of intent to prove pay discrimination. Instead, an employer will face liability under the Maine Equal Pay Act when employees of one sex are being paid less than employees of the opposite sex for comparable work in comparable jobs, regardless of intent, unless the employer can demonstrate that the disparity stems from seniority, merit, or shift differentials.

In this case, Mundell worked as a licensed clinical psychologist where she earned an hourly rate of $50 per hour. In her lawsuit, Mundell alleged that the hospital violated the state’s equal pay law by paying Mundell’s male counterparts in the department between $90 to $95 per hour. On appeal, the hospital argued that the lower court’s decision in favor of Mundell was incorrect because the hospital’s intent to discriminate was not established. Instead, the hospital claimed a reasonable-factor-other-than-sex defense and cited “market factors” to explain the difference in pay.

The court found it significant that the Maine equal pay law had previously been amended to remove the broad catch-all defense for any “other reasonable differential except difference in sex,” and therefore provides greater protections than those provided under the federal Equal Pay Act, which contains a similar catch-all defense for pay differentials. Looking at the plain language of the law, the court found that the only allowable reasons for paying someone of the opposite sex a higher wage for the same kind of work are seniority, merit pay, and/or shift differentials.

Because of this, the court declined to accept the hospital’s “reasonable factor other than sex” defense and found instead that the hospital had violated the state’s equal pay law by failing to compensate Mundell in line with her male colleagues.  The court also noted that the Maine legislature recently broadened the state’s Equal Pay Act to include pay discrimination based on race.

Action Items

1. Conduct an equal pay audit.
2. Review pay differentials for similar positions with legal counsel.

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. © 2024 ManagEase

Discussion

Private employers with 100 or more total employees, with at least one employee in California, who are required to file EEO-1 reports must also file separate pay data reports with the state by May 8, 2024. Required pay data is reported according to race, ethnicity, and gender. Private employers with 100 or more employees hired through labor contractors must also submit a separate pay data report for those workers in California. Note that employers must report on their workers assigned to California establishments and/or working within California. Employers may not report on workers who are working outside of California and are assigned to an establishment outside of California.

The California Civil Rights Department (CRD) recently updated its guidance to assist employers with their filing obligations. The guidance generally remains consistent with some key updates.

Updated Report Templates. Importantly, the CRD updated the User Guide, report templates, training slides, and its reporting portal. Employers must use the newest reporting templates as the portal will reject old versions. The templates have also been enhanced with embedded instructions when hovering the cursor over columns.

Remote Worker Data. Employers must now report whether employees worked remotely during the Snapshot Period. A “remote worker” includes a payroll or labor contractor employee who is entirely remote, teleworking, or home-based, and has no expectation to regularly report in person to a physical establishment to perform work duties. Employees in hybrid roles or (partial) teleworking arrangements expected to appear in person to perform work at a particular establishment for any portion of time during the Snapshot Period would not be considered remote workers for pay data reporting purposes. The “Snapshot Period” is a single pay period between October 1 and December 31 of the Reporting Year.

Reporting “Unknown” Data. For Labor Contractor Employee Reports, reporting “unknown” race/ethnicity or sex of a labor contractor employee is no longer permitted. If an employee declines to voluntarily provide their race/ethnicity, employers must still report the employee using (in the following order): current employment records, other reliable records or information, or observer perception. If an employee declines to state their sex, employers must still report the employee as male, female, or non-binary, using current employment records or other reliable records or information, such as an employee’s self-identified pronouns.

Covered employers should be preparing to file the required reports by May 8, 2024. The CRD is actively pursuing non-filers, including seeking monetary penalties of $100 per employee for the first violation and $200 per employee for subsequent violations.

Action Items

1. Review updated guidance here.
2. Download the current User Guide and templates here.
3. Prepare the required reports for timely filing.

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. © 2024 ManagEase

Discussion

The California Public Health Department (CDPH) recently updated its COVID-19 guidance to adjust isolation requirements. The CDPH has shifted the focus of its policies and priorities for intervention to protecting those most at risk for serious illness, and keeping recommendations consistent with the prevention of other endemic respiratory viral infections. COVID-19 vaccination remains the CDPH’s most important strategy to prevent serious illness and death from COVID-19, as well as focusing on early treatments to reduce the severity of disease once individuals are infected.

What is the new guidance?

The new guidance tells people to stay home if they have COVID-19 symptoms. People can end isolation 24 hours following the end of a fever (without fever-reducing medication) and their symptoms are mild and improving. However, people are instructed to mask for 10 days after becoming sick or testing positive. Masks may be removed sooner than 10 days following two sequential negative tests at least one day apart. Those with COVID-19 should avoid contact with people at higher-risk for severe COVID-19 for 10 days, including the elderly, those who live in congregate care facilities, those who have immunocompromising conditions, and that put them at higher risk for serious illness.

Do the Cal/OSHA Non-Emergency Regulations still apply to employers?

Yes. Employers must still follow the non-emergency regulations for COVID-19 cases. Because the regulations look to the CDPH rules on when isolation is required, the new CDPH isolation guidelines must be followed for individuals with COVID-19 symptoms. Note that for COVID-19 cases with no symptoms, there is no infectious period for the purpose of isolation or exclusion.

CDPH no longer recommends testing for all close contacts and instead recommends testing only for all people with new COVID-19 symptoms, and close contacts who are at higher risk of severe disease or who have contact with people who are at higher risk of severe disease. Regardless of CDPH recommendations, employers must continue to make COVID-19 testing available at no cost and during paid time to all employees with a close contact, except for asymptomatic employees who recently recovered from COVID-19. Employers must also still follow the regulations rules on outbreaks.

Does this updated guidance apply to healthcare settings?

No. ​This guidance does not apply to healthcare personnel. Healthcare personnel in general acute care hospital​​, acute psychiatric​ hospital, and skilled nursing facilities should continue to follow their industry-specific regulations.

Action Items

1. Review the updated guidance here.
2. Review updates to the Cal/OSHA Non-Emergency Regulation guidance here.
3. Have policies and procedures updated.
4. Have appropriate personnel trained on the new guidelines.

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. © 2024 ManagEase

Discussion

HB 55 states that requiring employees to enter into a confidentiality clause regarding sexual misconduct, as a condition of employment, is against public policy and is void and unenforceable. A confidentiality clause includes nondisclosure or nondisparagement clauses that have the effect of prohibiting employees or former employees from talking about sexual assault or sexual harassment.

Employers also may not retaliate against any employee because they made an allegation of sexual harassment or assault, or if they refused to enter into a confidentiality agreement as a condition of employment. An employee may, within three business days after the day on which the employee agrees to a settlement agreement that includes a confidentiality clause regarding sexual misconduct, withdraw from the settlement agreement.

HB 55 does not prohibit confidentiality of the amount of a monetary settlement or facts that could lead to the identification of the employee. Employers may still require employees to sign a post-employment restrictive covenant or agree to keep confidential an employer’s non-public trade secrets, proprietary information, or confidential information that does not involve illegal acts. The bill also does not prohibit an employee from discussing sexual misconduct or allegations of sexual misconduct in a civil or criminal case when subpoenaed if the sexual misconduct or allegations of sexual misconduct are against the individual whom the employee alleged engaged in sexual misconduct.

An employer who attempts to enforce a confidentiality clause is liable for all costs, including reasonable attorney fees, resulting from legal action to enforce the confidentiality clause; and is not entitled to monetary damages resulting from a breach of a confidentiality clause. Although the bill went into effect February 28, 2024, by its own terms, it is retroactively applied to January 1, 2023.

Action Items

1. Review HB 55 here.
2. Have confidentiality clauses revised.
3. Have appropriate personnel trained on the requirements.
4. Consult with legal counsel regarding retroactive application of HB 55.

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. © 2024 ManagEase