September Updates

A federal district court in Northern California recently awarded $1 million to a former employee and immigrant, who was denied employment on the basis that his former use of a false Social Security Number (“SSN”) constituted a “lack of integrity.”

The plaintiff, Victor Guerrero, initially sought employment in the U.S. using a false SSN, but later obtained legalized immigration status.  Guerrero submitted an application to the California Department of Corrections and Rehabilitation (“CDCR”) with his correct SSN and met all of the job’s qualifications.  However, Guerrero admitted in an interview to using a false SSN in years past, confirmed by a routine background check.  When the CDCR rejected him due to “willful disregard of the law,” Guerrero filed suit, alleging national origin discrimination.

The court stated that while the CDCR’s policy to run background checks for good moral character was facially neutral, in practice it had a disparate impact on Latino applicants based on a review of the CDCR’s history of applicants who were denied employment based on prior use of an invalid SSN.  Thus, the CDCR had a duty to apply relevant EEOC factors to establish a business necessity for the policy used, which the court said it failed to do.  The court thus ruled in favor of Guerrero on a Title VII disparate impact claim and awarded him over $1 million in back pay, attorney’s fees, and expenses.

Employers should be cautious upon receipt of information that job applicants or employees may have previously used a fake SSN.  Once a formerly undocumented individual receives valid authorization for employment—an occurrence that has increased under the Deferred Action for Childhood Arrivals program—the individual can seek a valid SSN from the Social Security Administration.  As emphasized by this ruling, employers should take care to review adverse employment actions with legal counsel if based on use of an invalid SSN.

2016 EEO-1 Filing is Due September 30

The Equal Employment Opportunity Commission (EEOC) has completed mailing notification letters for the 2016 EEO-1 survey.  Private employers of 100+ employees and certain federal government contractors must file the EEO-1 report each year.  Company employment data is due September 30, 2016.  More information on the EEO-1 survey is available on the EEOC’s dedicated webpage.

Employers who meet the above criteria, or who filed EEO-1 in 2015, but did not receive a notification letter, may follow up with the EEO-1 Joint Reporting Committee at 866-392-4647 or via e-mail at e1.techassistance@eeoc.gov with questions or concerns.

Ninth Circuit: New Remedy Available for Public Employees Making Age Discrimination Claim

Effective August 5, 2016, public-sector employees may now be able to make a complaint of retaliation based on age discrimination against a state or local government entity or official under Section 1983 of the federal Civil Rights Act. This decision arises from Stilwell v. City of Williams, in which the City allegedly terminated an employee after the employee signed a sworn statement and planned to testify in another lawsuit against the City related to age discrimination of another person.

The Ninth Circuit stated that the ADEA did not preclude a Section 1983 claim alleging violation of one’s constitutional rights.  Where the ADEA forbids discrimination and retaliation based on age when making employment decisions, Section 1983 allows an individual to challenge an action under “color of [State] law” that denies the individual their federal constitutional or statutory rights, so long as another statute does not preclude the ability to bring suit.  The Stilwell court distinguished the basis for the Section 1983 claim as being rooted in retaliation for identifying a case alleging age discrimination, rather than being the victim of the age discrimination.

California: Employees/Volunteers at Day Care Centers Now Required to be Immunized

Effective September 1, 2016, SB-792 requires any employee or volunteer working at a California day care center to be immunized against influenza, pertussis, and measles.  The influenza vaccination must be received between August 1 and December 1 of each year. “Volunteer” is defined as “any nonemployee who provides care and supervision to children in care.”

Exemptions to the new requirement apply under the following circumstances:

• The individual provides a written statement from a licensed physician declaring that immunization is not safe due to the individual’s physical condition or medical circumstances;
• The individual provides a written statement from a licensed physician demonstrating that the individual has evidence of current immunity to influenza, pertussis and measles;
• The individual submits a written declaration that he or she declines the influenza vaccination (note: this exemption applies to influenza only – not pertussis or measles); or
• The individual was hired after December 1 of the previous year and before August 1 of the current year (note: this exemption applies only to the influenza vaccine during the first year of employment or volunteering).

Covered individuals who meet all other requirements, but need more time to obtain or provide a copy of their immunization records, can be employed or volunteer conditionally for 30 days upon receipt of a written and signed statement that the individual has received their necessary immunization.

Lastly, day care center employers will now be obligated to keep records of the required immunizations or exemptions in each employee or volunteer’s personnel records.

San Diego, California: REMINDER – Amendments to Paid Sick Leave Are In Effect

We recently published an Alert on San Diego’s amendments to the paid sick leave ordinance.  These amendments went into effect September 2, 2016.  Employers with San Diego employees should carefully review the amended changes and plan accordingly to adjust their practices and procedures, if necessary.

San Mateo, California: Minimum Wage Increases on January 1, 2017

Effective January 1, 2017, the City of San Mateo’s minimum wage will increase to $12.00 per hour.  The minimum wage ordinance also sets forth a schedule of increases for the following years:

• January 1, 2017 – $12.00
• January 1, 2018 – $13.50
• January 1, 2019 – $15.00
• January 1, 2020 – Additional increases tied to the Consumer Price Index in the San Francisco-Oakland-San Jose area.

This schedule increases the minimum wage more quickly than the statewide increase, so employers should review their current compensation records and labor budget to ensure San Mateo employees are paid appropriately.  Note that the increase schedule differs for 501(c)(3) nonprofit organizations.

In addition, the ordinance requires that a minimum wage poster be displayed.  Interested employers should refer back to the City’s website for updates on the ordinance and publication of the poster.

Colorado: Pregnant Workers Fairness Act Poster Now Available

In July, we alerted readers to Colorado’s expanded protections for pregnant workers. Among other requirements, as of August 10, 2016, Colorado employers are now obligated to (A) inform new employees of their rights at time of hire by written notice, (B) inform current staff of their rights by December 10, 2016 by written notice, and (C) display the written notice in a conspicuous location.

The Colorado Civil Rights Division has published a notice employers can use to satisfy these requirements.  The posters are available in English and Spanish on the Colorado Department of Labor and Employment’s Poster page.

Illinois: Non-Compete Agreements for “Low-Wage Employees” are “Illegal and Void” in 2017

Illinois recently passed the Freedom to Work Act which prohibits non-compete agreements for “low-wage employees” entered into on or after January 1, 2017.  A “low-wage employee” is any employee who earns the greater of the applicable hourly minimum wage or $13 per hour.  Under the new rule, an employer is prohibited from entering into an agreement that restricts a “low-wage employee” from performing any work for another employer (1) for a specified period of time, (2) in a specified geographical area, or (3) that is similar to the employee’s work for the current employer.  It is unclear what exceptions may apply to this new rule.  Employers should consult legal counsel to determine what changes may need to be made to non-compete agreements, if any.

Louisiana: New Poster for Hospitality Employers Required August 1, 2016

Effective August 1, 2016, Louisiana added hospitality employers to the list of certain businesses (e.g., massage parlors, strip clubs, gas stations near an interstate highway) who are required to display a poster regarding the National Human Trafficking Resource Center (“NHTRC”) hotline.

All hotels in Louisiana must display the poster near other federal and state-required postings.  “Hotel” is defined as “any establishment, both public and private, engaged in the business of furnishing or providing rooms and overnight camping facilities intended or designed for dwelling, lodging, or sleeping purposes to transient guests.”  Camps or retreats owned and operated by nonprofits and bed and breakfasts with 10 or fewer guestrooms are exempt from this posting requirement.

A model poster has been made available by the Louisiana Office of Alcohol & Tobacco Control. Covered employers may also create their own poster, so long as the poster measures at least 8.5” x 11” and contains the following language in a bold-type print of at least 14 point font:

“If you or someone you know is being forced to engage in any activity and cannot leave, whether it is commercial sex, housework, farm work, or any other activity, call the National Human Trafficking Resource Center hotline at 1-888-373-7888 to access help and services.”

Failure to display this poster may result in civil fines and the possibility of the hotel’s state alcohol permit being suspended or revoked.

New Orleans, LA: City Contractors Prohibited From Conducting Credit Checks

Effective December 23, 2016, the Equal Access to Employment Act (the “Act”) prohibits City contractors from seeking or using consumer credit history for employment decisions (e.g., hiring, compensation, or terms and conditions of employment).  The Act applies to all City contractors of any size, and covers all employees who work at least 40 hours in a calendar year in New Orleans on a City contract.

Certain sensitive roles are exempt from the Act, such as current or prospective employees in positions with fiduciary responsibility for assets worth $10,000 or more, positions that are required by law to possess security clearances or handle intelligence or national security information, positions with access to trade secrets, or positions with regular duties that involve modifying digital security systems that prevent unauthorized use of the employer’s networks or databases.

City contractors will now be obligated to post a notice regarding the Act in every worksite where current or prospective employees are located.

Nevada: Overly Broad Non-Compete Agreements are Wholly Unenforceable

The Nevada Supreme Court recently stated that overly broad non-compete agreements will be wholly unenforceable.  If the agreement is unreasonable in duration, geographic scope, work exclusion, or other restraints beyond what is needed to protect the employer’s interests, the entire agreement is void, and courts will not be permitted to “blue pencil” or modify the agreement to make it enforceable.

The Court commented on the need to prohibit “blue penciling,” which would presumably prevent employers from attempting to enforce unreasonable agreements with the aim of negotiating later in court, knowing that parts of the agreement can be upheld.

Employers should therefore review their non-compete and non-solicitation agreements with legal counsel to determine if such agreements could be considered unreasonable, and consider tailoring agreements to more narrowly protect their interests.

Cleveland, Ohio: Transgender Individuals Must Have Access to Facilities Consistent with their Gender Identity

Cleveland, Ohio joins the growing list of states and localities across the nation in enforcing measures concerning gender identity and expression.  Effective July 13, 2016, places of public accommodation—including employers—in the City of Cleveland must allow transgender employees and patrons to use the restrooms, locker rooms, showers or dress facilities associated with the individual’s gender identity or expression.

The ordinance makes it an unlawful discriminatory practice for places of public accommodation to discriminate against, or make a distinction in offering goods, services, facilities or accommodations to any individual based upon the individual’s gender identity or expression.  Note that religious or denominational groups are exempt from this ordinance.

Violation of this ordinance may result in civil and criminal penalties.  Aggrieved individuals can file a complaint with Cleveland’s Fair Housing Board.

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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