Ninth Circuit: Joint Employers Are Liable for Non-Workplace Matters Under Title VII for H-2A Workers

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All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, or Northern Mariana Islands Employees with H-2A Visas

EFFECTIVE

February 6, 2019

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In EEOC v. Global Horizons, Inc., the Ninth Circuit stated that because employers of H-2A workers are required to provide housing, meals and transportation as “material terms and conditions” of their employment, these employers can be liable for such non-workplace matters under Title VII, even if the employers contract with a third party to provide those work benefits. There, two orchard growers hired Global Horizons as their staffing firm to recruit agricultural workers using H-2A visa authorizations. Two of the workers filed a discrimination claim against the growers and Global Horizons, claiming poor working conditions, substandard living conditions, and unsafe transportation based on their race and national origin.

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California: New Independent Contractor Test for Domestic Caregivers

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All Employers with CA Independent Contractors Who Are Domestic Caregivers

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January 11, 2019

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In Duffey v. Tender Heart Home Care Agency, LLC, the California Court of Appeal recently applied yet another independent contractor test to domestic caregivers who are subject to the Domestic Worker Bill of Rights (DWBR). Specifically, the DWBR states that an employment relationship exists under two possible scenarios. First, employment occurs “when the hiring entity exercises control over the wages, hours, or working conditions of a domestic worker.” The court noted that an employer need only have control over one of these characteristics, not all three. Second, employment is also defined “when a common law employment relationship has been formed.” This is analyzed using the Borello test.

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California: Labor Commissioner Challenges Federal Preemption of Meal and Rest Break Rules

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All Employers with CA Employee Truck Drivers Subject to HOS Regulations

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February 6, 2019

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California Attorney General Xavier Becerra recently announced that the California Labor Commissioner intended to challenge the Federal Motor Carrier Safety Administration’s (FMSCA) determination that federal hours of service (HOS) regulations preempt California meal and rest period regulations for property-carrying commercial vehicle drivers. Specifically, the FMSCA announced California meal and rest period regulations were incompatible with federal regulations, disrupted interstate commerce, did not offer any safety benefits beyond that already covered by federal law, and were overly burdensome and difficult to regulate. In response, on February 6th, the California Labor Commissioner filed a petition with the Ninth Circuit Court of Appeal, requesting that the circuit court review and reverse the FMSCA determination.

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California: Payroll Service Providers Not Liable for Payroll Violations

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All Employers with CA Employees

EFFECTIVE

February 7, 2019

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In Goonewardene v. ADP, Inc., the California Supreme Court recently stated that a third-party payroll service provider could not be held liable for errors the service made in issuing paychecks to employees of the company it provides service to.  There, an employee sued both her employer and ADP, its payroll processing service, for wage and hour violations, including failure to provide adequate documentation and records, wrongful termination, breach of contract, and negligence, among others.  The former employee argued that she was a third-party beneficiary of the contract between ADP and her employer, and that ADP had been negligent in providing payroll services for her benefit.

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Indiana: State Supreme Court Sheds Light on Independent Contractor Test for On-Demand Services

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All Employers with IN Employees

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January 23, 2019

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(888) 378-2456

In Q.D.-A, Inc. v. Indiana Department of Workforce Development, the Indiana Supreme Court examined whether or not a large vehicle transportation driver qualified as an independent contractor.  Q.D.-A is a transportation matching service that coordinates independent drivers with manufacturers in order to transport large recreational or non-towable vehicles. Q.D.-A required the driver to attend a two-day training orientation on federal regulations and complete a driving test, but the driver was otherwise able to refuse jobs, work with other competitors, and negotiate his own pay.

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Massachusetts: Denying Lateral Transfer May be Considered Discriminatory

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All Employers with MA Employees

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January 29, 2019

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In Yee v. Massachusetts State Police, the state Supreme Judicial Court stated that by not granting Yee, a self-identified Chinese Asian-American, a lateral transfer from one Troop to another in the State Police, while granting the same transfer to Caucasian employees, his employer caused an “adverse employment action.” Specifically, Yee claimed the transfer would have afforded him additional opportunities for compensation for working overtime and on details. The Court stated that an adverse employment action is not limited to denial of a promotion, but includes a material difference in the terms, conditions, or privileges of employment.

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Missouri: LGBTQ Protections Expanded for Sex Stereotyping

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All Employers with MO Employees

EFFECTIVE

February 26, 2019

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In Lampley v. Missouri Comm’n on Human Rights, the Missouri Supreme Court stated that sex stereotyping can form the basis of a sex discrimination claim under the Missouri Human Rights Act (MHRA). There, an employee claimed he was discriminated against because his behavior and appearance did not evoke sufficient “maleness” for his employer. Although the employee acknowledged he was gay and the MHRA does not protect sexual orientation, the Court stated that “an employee who suffers an adverse employment decision based on sex-based stereotypical attitudes of how [one] should act can support an inference of sex discrimination.” Moreover, “sexual orientation is incidental and irrelevant to sex stereotyping.” Employers must take care to ensure equal treatment of employees, regardless of stereotypes associated with one’s biological sex.

Action Items

  1. Have anti-harassment and discrimination policies reviewed for compliance.
  2. Have employees trained on sexual harassment and discrimination prevention.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

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.

© 2019 ManagEase

New Jersey: Expanded Family and SAFE Leave and Disability Benefits

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Certain Employers with NJ Employees

EFFECTIVE

As Indicated

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(888) 378-2456

The New Jersey Governor recently signed legislation to expand the New Jersey Family Leave Act, Temporary Disability Leave Act, and Security and Financial Empowerment (SAFE) Act.  The following is a summary of key changes.

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New York, NY: Commission Publishes Enforcement Guide on Hair-Based Race Discrimination

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All Employers with New York, NY Employees

EFFECTIVE

February 18, 2019

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(888) 378-2456

The New York City Human Rights Law (NYCHRL) protects individuals from discrimination based upon hairstyles associated with racial, ethnic, or cultural identities.  In February, the Commission tasked with enforcement of the NYCHRL published guidance on these protections. Specifically, hair-based discrimination is defined as a subset of race discrimination, pointing to historical bans on natural hair or hairstyles typically associated with the Black community (e.g., afros, cornrows, locs, etc.).  Employers should beware of dress and grooming policies that (intentionally or unintentionally) violate this right.  The guidance provides examples of unlawful grooming requirements, including:

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Washington: Employers Have Strict Liability for Employees’ Discriminatory Conduct Toward Non-Employees

APPLIES TO

All Public Accommodation Employers with WA Employees

EFFECTIVE

January 31, 2019

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(888) 378-2456

In Floeting v. Group Health Collective, the Washington Supreme Court stated that employers are strictly liable for discriminatory conduct employees engage in toward non-employees in places of public accommodation, even if the employer did not know about the behavior. Places of public accommodation are defined as all facilities used by the public, such as banks, hotels, restaurants, medical provider’s offices, education facilities, etc.

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