Category: employment law

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“No Spanish” Rule is National Origin Discrimination and Retaliation, Says EEOC

Constitutional rights lawyers of Helmer Friedman LLP.

The Equal Employment Opportunity Commission (EEOC) recently settled charges of national origin discrimination and retaliation against Total Employment and Management (TEAM). This Washington employer instituted a “No Spanish” rule in its workplace. TEAM, a staffing company, agreed to pay $276,000 to settle the charges filed with the EEOC. According to the EEOC, TEAM imposed a “No Spanish” rule without an adequate business necessity. Also, it fired five employees from two locations when those employees opposed the rule and continued to speak Spanish in the workplace.

As part of the settlement, TEAM agreed to revise and update its policies, provide them in English and Spanish, and train its employees on harassment and discrimination.

Under the EEOC guidance and federal law, “English Only” employment rules violate Title VII of the Civil Rights Act of 1964, prohibiting national origin discrimination unless the employer can demonstrate a business necessity. In addition, these rules are considered discriminatory due to a disparate effect on employees who speak English as a second language or through disparate treatment against those same employees when they speak their language of birth and are disciplined or otherwise adversely affected.

EEOC regulations state that a rule requiring employees to always speak English is presumed to violate Title VII and will be closely scrutinized by the Commission. However, such a rule can be valid in very limited circumstances and usually only at certain times. Some situations the EEOC indicates might meet the business necessity requirement are the following:

  • Communicating with customers, coworkers, or supervisors who only speak English.
  • Employees must speak a common language in emergencies or other situations to promote safety.
  • For cooperative work assignments, the English-only rule is needed to promote efficiency.
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication in English with coworkers or customers.

Generally, such a rule cannot be applied to casual conversations between employees when they are not performing job duties.

Likewise, federal courts have upheld “English Only” rules when there is a potential for workplace danger, where a foreign language is being used to further hostility in the workplace, or when monitoring of employees by supervisors is necessary. Trends in these court decisions track the EEOC guidance—the business justification must be narrow and necessary, and those justifications are shrinking.

Employers considering any rule regarding establishing or limiting language in the workplace should consult with employment counsel before implementing such a rule. A facially neutral policy may be discriminatory when applied, and a believed business justification for such a policy may run contrary to recent decisions and guidance.

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AB 1949: Employers Required to Provide 5 Days of Bereavement Leave

Sexual harassment retaliation by landlord.

AB 1949: New requirement for employers to provide 5 days of bereavement leave

AB 1949 makes it an unlawful employment practice for a covered employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave (which need not be consecutive) upon the death of a family member. A “covered” employer is: (i) a person who employs 5 or more persons to perform services for a wage or salary; and (ii) the State and any political or civil subdivision of the State, including, but not limited to cities and counties. An “eligible” employee means a person employed by the employer for at least 30 days prior to the commencement of the leave. A “family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Government Code Section 12945.2

The law provides that bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The law requires that the leave be completed within 3 months of the date of death.

The law also requires employees, if requested by the employer, within 30 days of the first day of the leave, to provide documentation of the death of the family member.

“Documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.

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Non-Disparagement Clauses Are Retroactively Voided, NLRB’s Top Cop Clarifies

The general counsel of the National Labor Relations Board issued a memo this week clarifying one of the biggest open questions after the NLRB rules broad non-disparagement clauses were illegal.

The general counsel of the National Labor Relations Board issued a clarifying memo on Wednesday regarding the “scope” of a February ruling by the federal agency’s board that said employers cannot include blanket non-disparagement clauses in their severance packages, nor demand laid-off employees keep secret the terms of their exit agreements.

Such provisions have become increasingly common in recent years, muzzling employees and otherwise stopping them from speaking up about working conditions by dangling a few weeks or months of pay in front of them at the exact moment they are losing their job.

In the memo sent to regional offices, General Counsel Jennifer Abruzzo addressed what had been one of the largest questions that resulted from the ruling: Does it retroactively void broad non-disparagement agreements that were signed prior to the February ruling? Abruzzo wrote that the decision does, in fact, have “retroactive application,” meaning that already-signed and “overly broad” non-disparagement clauses are no longer considered valid by the NLRB.

Abruzzo is charged with prosecuting cases against employers who break the rules. She said an unlawful clause would likely not invalidate an entire severance agreement, as the regional offices tend to “seek to have [the unlawful portions] voided out as opposed to the entire agreement.”

However, employers who attempt to continue to enforce illegal severance clauses could face trouble from the NLRB. While the NLRB typically has a six-month statute of limitations for labor violations, businesses who attempt to enforce illegal parts of an older severance agreement would be committing a contemporary “violation” and subject to enforcement, Abruzzo said.

Additionally, Abruzzo provided clarification around what non-disparagement and confidentiality clauses may still be considered legal. The provisions, she said, must be “narrowly-tailored.” In the case of confidentiality, the clause must serve to keep proprietary trade information secret “for a period of time based on legitimate business justifications may be considered lawful,” but must not have “a chilling effect that precludes employees from assisting others” or communicating with the media, a union, or other third parties.

With regards to non-disparagement, Abruzzo similarly said the provision must not only be both “narrowly-tailored” and “justified,” but limited to statements by an employee that fit the legal definition of defamation, meaning they are purposefully and maliciously untrue.

In February, the NLRB ruled that in a case regarding a Michigan hospital, laid-off workers had been asked to sign unnecessarily burdensome severance contracts that violated their labor rights. The decision overturned a pair of Trump-era decisions which had temporarily upended the previous “longstanding precedent” by saying that more broad non-disparagement and confidentiality clauses were lawful.

The NLRB this year said that the Trump era decisions were wrong and that the laid-off hospital employees had been asked to “overly broad non-disparagement and confidentiality clauses” that unnecessarily restrained their NLRB rights. The decisions led to questions about what the decision meant for people who signed similar non-disclosure agreements in the interim.

Read more from Maxwell Strachan.

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SB 1162: Expanded Pay Data Reporting and Mandatory Pay Scale Disclosures

If you feel you were paid less because of gender, national origin, or race contact Helmer Friedman LLP.

Effective January 1, 2018, California’s Equal Pay Act prohibited employers, with one exception, from seeking applicants’ salary history information and required employers to supply pay scales upon the request of an applicant.

SB 1162 expands upon these pay transparency measures and counters workplace discrimination by requiring employers of 15 or more employees to: (i) include the pay scale for a position in any job posting; (ii) provide pay scale information to current employees and to applicants upon reasonable request; and (iii) maintain employee records, including job titles and wage rate histories, through the term of each employee’s employment and for 3 years after their employment has ended.

SB 1162 also expands covered employers’ pay data reporting obligations. Since 2021, California law has required private employers who have 100 or more employees and who must file a federal EEO-1 to file an annual pay data report with the California Civil Rights Department (formerly the California Department of Fair Employment and Housing) on or before March 31 of each year. SB 1162 broadens these obligations in several significant ways.

First, the bill expands who must file a pay data report so that all private employers with 100 or more employees will be required to file a pay data report regardless of whether they also must file a federal EEO-1, and private employers with 100 or more employees hired through labor contractors will be required to submit a separate pay data report regarding these contracted workers.

Second, in addition to demographic and pay band information, employers’ pay data reports will also need to identify, within each job category, the median and mean pay rate for each combination of race, ethnicity, and sex.

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SB 1044: Preventing Retaliation During Emergency Condition

Workers injured during natural disasters because employers refused to allow them to seek safety.

As climate-related disasters increase in intensity and frequency, employees are regularly expected (and sometimes required) to place their lives in danger by continuing to work through these calamities. For example, during recent tornadoes in Illinois, Amazon not only refused to let workers leave a warehouse in the expected route of a tornado but also refused to allow its workers to access communications devices to track the dangerous conditions. The warehouse was destroyed, and several workers were killed. Similarly, during the Getty Fire, domestic workers and gardeners were required to continue working in Los Angeles evacuation zones. Agricultural workers in Sonoma County were required to continue picking produce during the Atlas/Tubbs fires. There were landscapers and housekeepers, along with children, among the 23 lost and 167 injured in the 2018 Montecito debris flow.

SB 1044 was designed to enhance workers’ protections during natural disasters by requiring employers to allow workers to have access to their cell phones or other communications devices during these emergencies to seek emergency assistance, assess the safety of the situation, or communicate with a person to confirm their safety and by permitting workers to leave a workplace or worksite within an area affected by an “emergency condition” if they feel that they must do so for their safety.

“Emergency condition” is defined to mean the existence of either of the following: (i) conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (ii) an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. SB 1044 specifically excludes a health pandemic from the definition of “emergency condition.”

Sadly, the California Chamber of Commerce designated this common-sense prophylactic as a “job killer,” as it routinely does with laws designed to protect employees and consumers, and many Republicans voted against it.

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Presidential Memorandum on Supporting Access to Leave for Federal Employees

Your workplace should be free of discrimination and harassment. Contact the attorneys of Helmer Friedman LLP for information.

On February 2, 2023, the Biden-Harris Administration, to mark the then-upcoming 30th anniversary of the Family and Medical Leave Act (“FMLA”), announced a series of new actions to support and advance America’s federal public employees. In this regard, President Biden issued a Memorandum For The Heads Of Executive Departments And Agencies, strongly encouraging those heads to provide access to leave for Federal employees when they need it, including during their first year of service, to ensure employees are able to bond with a new child, care for a family member with a serious health condition, address their own serious health condition, help manage family affairs when a family member is called to active duty, or grieve after the death of a family member. President Biden further directed the Office of Personnel Management is further directed to provide recommendations regarding “safe leave” to support Federal employees’ access to paid leave and leave without pay for purposes related to seeking safety and recovering from domestic violence, dating violence, sexual assault, or stalking. Those may include obtaining medical treatment, seeking assistance from organizations that provide services to survivors, seeking relocation, and taking related legal action.

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FTC Proposes Rule to Ban Non-compete Clauses

For decades, employers have used non-competition agreements to not only artificially lower the salaries of their employees but also to render those employees into something akin to indentured servitude.

Captured ideas On January 5, 2023, the Federal Trade Commission proposed a new rule – accessible at https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking — that would ban employers from imposing non-competes on their workers, a widespread and often exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses. The proposed rule provides that: “It is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.” The proposed rule would also require the rescission of all non-competition agreements entered into before the date the new rule takes effect.

By stopping these unfair non-competition agreements, the FTC estimates not only that wages might be increased by nearly $300 billion per year but also that expanded career opportunities would abound for about 30 million Americans.

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President Biden Signed Into Law the “Speak Out Act,” Curbing Use Of Non-Disclosure Agreements In Harassment Cases

Helping Employees Recover and Enforcing Employment Laws Helmer Friedman LLP.

President Biden signing the Speak Out Act.

On December 7, 2022, President Joe Biden signed the Speak Out Act, which bans the use of pre-dispute non-disclosure and non-disparagement contract clauses involving sexual assault and sexual harassment. The new law renders unenforceable non-disclosure and non-disparagement clauses related to allegations of sexual assault and/or sexual harassment that are entered into “before the dispute arises.” The new law does not prohibit the use of these agreements completely. The Speak Out Act exclusively prohibits and nullifies pre-dispute non-disclosure and non-disparagement agreements and does not apply to post-dispute agreements. Accordingly, the act only applies to instances before a sexual harassment, or sexual assault dispute arises. The act also does not apply to trade secrets, proprietary information, or other types of employee complaints such as wage theft, age discrimination, or race discrimination.

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23 Years a Slave: Restaurant Owner Gets Sentence for Enslaving Intellectually Disabled Black Man

A South Carolina restauranteur was sentenced to prison after admitting he used violence, threats, and intimidation to force a black man to work more than 100 hours a week with no pay in a stunning case of throwback slavery.

On Monday, U.S. District Court Judge R. Bryan Harwell sentenced 54-year-old Bobby Paul Edwards to 10 years in federal prison after he pleaded guilty to one count of forced labor, according to a press release from the Department of Justice. Prosecutors say that Edwards, who managed his family’s restaurant, forced Chris Smith, an intellectually disabled black man, to work for free and live in a small room behind the restaurant. Court documents show that Edwards physically abused Smith for at least 17 years, including whipping Smith with a belt, beating him with pots and pans, and even burning him with hot grease.

23 Years a Slave In 1996, when Smith was only 12 years old, he accepted a job at J&J Cafeteria in Conway, S.C., WPDE reports. Six years later, Edwards took over as manager and stopped paying Smith. Over the next 17 years, Edwards would torture, imprison and withhold pay from Smith, claiming that his pay was kept in an “account” that was inaccessible to Smith.

A federal lawsuit filed on Smith’s behalf claims that Smith worked 18 hours a day, six days a week. On Sundays, he only had to work 11 hours. During his entire 23 years of enslavement at J&J, Smith claims he never had a work break or a day off. Forced to live in a “cockroach-infested” apartment behind the business, Smith alleges that Edwards’ family never tried to intervene.

“They knew,” said Smith. “All of ‘em knew. They knew what he was doing.”

For stealing his victim’s freedom and wages, Mr. Edwards has earned every day of his sentence.

When Smith’s family would try to check on him, Edwards would lock Smith in the kitchen or even in the freezer. On the rare occasion that Smith indicated displeasure or tried to escape, he was hit in the head with a frying pan, burned with hot tongs, beaten with belt buckles, and called the n-word repeatedly. Customers reported that they sometimes heard Smith being beaten and screaming for his life.

“I wanted to get out of there a long time ago. But I didn’t have nobody I could go to,” Smith explained. “I couldn’t go anywhere. I couldn’t see none of my family so that was that…That’s the main basic thing I wanted to see was my mom [to] come see me.”

Geneane Caines, who was friends with the Edwards family, was a frequent customer at J&J, and her daughter, who worked at the eatery, told her how Edwards abused Smith. Once, while eating at the restaurant, she noticed signs of abuse.

He leaned one way over and when he did, I could see [a scar] on his neck.

“Chris came out of the kitchen and put some food down on the bar,” Caines told . “He leaned one way over and when he did, I could see [a scar] on his neck.”

After looking into the situation, Caines reported Edwards to the Department of Social Services, who rescued Smith. Caines also alerted Abdullah Mustafa, President of the Conway chapter of the NAACP. They helped Smith get on his feet and Caines allowed Smith to stay in her home for two months.

Edwards was sentenced to 10 years after pleading guilty to one count of forced labor. He was also ordered to pay $272,952.96 in restitution. (Or as Merriam-Webster correctly defines it: “Reparations.”)

“For stealing his victim’s freedom and wages, Mr. Edwards has earned every day of his sentence,” said U.S. Attorney Sherri A. Lydon for the District of South Carolina. “The U.S. Attorney’s Office will not tolerate forced or exploitative labor in South Carolina, and we are grateful to the watchful citizen and our partners in law enforcement who put a stop to this particularly cruel violence.”

The next day, Lydon, an ever-vigilant protector of the people, prosecuted 28-year-old Erron Jordan. Jordan was stopped by a Conway police officer because his window tint was too dark. After cops noticed the “odor of marijuana,” police found a small amount of illegal drugs, prescription pills, and a firearm in the car.

Jordan was sentenced to 12 years in prison and three years of supervised probation.

Jordan has never been convicted of a violent offense.

Oh, “Justice” Department, you almost had me.

If you or your loved ones would like to dine at J&J Cafeteria, it is open 14 hours a day, seven days a week.

It is still owned by the Edwards family.

Read more by Michael Harriot at The Root

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Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

February 28, 2022 – As the Senate prepares to hold hearings on the historic nomination of Ketanji Brown Jackson, the first Black woman nominated to sit on the Supreme Court, it’s the perfect time to highlight a new biography about another Black woman who accomplished a series of firsts and who, in another, more modern, era, would almost certainly have been nominated to serve on the Supreme Court – Constance Baker Motley.  

Constance Baker Motley first Black woman to argue before SCOTUS. Constance Baker Motley was not only the first Black woman to argue before the Supreme Court (winning an astonishing nine of 10 cases), but she was also the first black woman to be appointed to the federal judiciary – President Lyndon B. Johnson appointed her to the Southern District of New York.

Motley began college at Fisk University, a historically black college in Nashville, Tennessee, but subsequently transferred to New York University, where she graduated with a Bachelor of Arts degree. She received her Bachelor of Laws from Columbia Law School. Motley then went to work for the NAACP Legal Defense and Educational Fund, Inc. as a civil rights lawyer, where she wrote the original complaint in the case of Brown v. Board of Education. Her first argument before the Supreme Court was in Meredith v. Fair; she won James Meredith’s effort to be the first black student to attend the University of Mississippi.

Civil Rights Queen Constance Baker MotleyIn her terrific new book on Motley’s life and legacy – called “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality“- Harvard law professor Tomiko Brown-Nagin Poignantly describes Motley’s life from the time that she was born to a working-class family during the Great Depression, to her role as one of the principal strategists of the Civil Rights Movement and for her legal defense of Martin Luther King Jr., the Freedom Riders, and the Birmingham Children Marchers when she was a civil rights lawyer for the NAACP, to her service in the New York State Senate and as Manhattan Borough President, to her becoming the first Black woman serving in the federal judiciary.