In the second case, Kern Asphalt Paving & Sealing Company (“Kern Asphalt”), Director Duncan departed held that the delivery by the contractor’s truck drivers of asphalt and sub base materials purchased from a commercial supplier to a public works construction site was subject to prevailing wage requirements. The Director reasoned that under Labor Code Section 1772 the drivers were "workers employed by contractors or subcontractors in the execution of [a] contract for public work" and are therefore "deemed to be employed upon public work". The Director explained that unless the truck drivers are hired by commercial material suppliers, the prevailing wages must be paid for hauls to the public worksite regardless of how much time is spent on the site or whether the material is immediately incorporated. Director Duncan noted as follows: The Director also held that driver employees of commercial material suppliers were entitled to the payment of prevailing wages when the material is immediately incorporated into the flow of construction.

Lastly, the Director ruled that when employees are on work time when travelling to and from a public worksite, the prevailing wage rate for the travel time is the regular rate paid to the employee under the applicable on-site prevailing wage determination absent a different designated prevailing wage rate for travel.

For now, contractors must evaluate future bids to ensure compliance with the new guidelines. Thus, contractors and subcontractors will be required to request from the DIR and DLSR prevailing wage rates for covered on-haul and off-haul driving. Contractors bidding public work should seek guidance from their legal counsel or industry trade association to insure compliance with prevailing wage requirements in light of these new decisions. For more information on this topic, contact Paul V. Simpson or Laura E. Innes of Simpson, Garrity & Innes, PC.

Factual issues also existed on the retaliation and hostile work environment claims. Team Electric did not meet its burden of showing a non-retaliatory motive for termination simply because a group of workers were laid off at the same time as Davis for economic reasons. The employer’s failure to explain why it selected Davis, in particular, for the layoff, rather than other electricians with less seniority, raised a factual issue as to whether its motive was pretext. The court also held that Team Electric could be held vicariously liable for a hostile environment created by its supervisors.

Employers should be aware that differing treatment between male and female employees could raise a factual issue sufficient to defeat summary judgment and result in a case being put to the jury. Be sure to support your decisions about work assignments with reasons based on business necessity. Also, you can consult counsel to assist you in strategizing a reduction in force proactively. The attorneys at Simpson, Garrity & Innes, PC can help when planning for reductions in force.

The agency contended that the decision to terminate Grace resulted from a legitimate economic decision unrelated to her exercise of FMLA rights. The court found that there was an issue of fact as to whether USCAR’s decision to restructure its IT division would have occurred regardless of Grace’s leave and whether Grace’s replacement, who was ostensibly part-time but was compensated at a higher rate, had different duties and responsibilities from her.

This case illustrates an important point to remember: employers are not always insulated from legal liability for actions taken with respect to temporary employees. For most purposes, the client company will be considered to be a joint employer along with the temporary agency of the temporary employee. If questions come up as to the treatment of temporary employees – do not assume that your decisions cannot come back to haunt you.

You may contact the attorneys at Simpson, Garrity & Innes, PC if you have questions about the recent amendments and/or need to update your policies to reflect those changes.

The case, Setencich v. The American Red Cross, involved a claim under the FEHA of "association discrimination." The plaintiff, Brian Setencich, was recruited by the Red Cross to become the Communications Manager for Blood Services, Western Region, Division of the American Red Cross. As the Communications Manager for Blood Services, Setencich would have reported to the Director of Public Affairs and Communications, Marc Jackson. Setencich and Jackson knew each other from having worked together in the early 1990s when Setencich was on the Fresno City Council and Jackson was the Director of Public Relations and Editor in Chief of the Metro News.

Setencich satisfied the qualifications for the Communications Manager position, and he met with Red Cross principals and the hiring panel on numerous occasions. The hiring panel made specific representations that it intended to hire Plaintiff. At some point, the hiring panel learned of Setencich’s association with Jackson. Jackson suffered from a disability at the time that Setencich was interviewing for the position. According to Setencich’s complaint, the Red Cross was attempting to force Jackson out of his position because of his disability, use of medical leave, and protected activity. The Red Cross ultimately decided not to hire Setencich.

Setencich sued the Red Cross for violation of the FEHA. Setencich alleged that the Red Cross discriminated against him based upon his association with Jackson, an employee the Red Cross allegedly was attempting to constructively discharge because of his disability. The only link between the two men was their prior work together while Setencich was a member of the California State Assembly and occasional social interaction between them.

The Red Cross attempted to dismiss Setencich’s association discrimination claim – alleging that the relationship between the two men was not sufficiently strong to support the claim of association discrimination. It argued that association discrimination must be based on more than an occasional and temporary business or social interaction. The judge denied the Red Cross’s motion to dismiss the association discrimination claim, holding that Setencich had alleged a sufficient "association" between him and Jackson to support an association discrimination claim and thus avoid dismissal at the pleading stage of the case.

The FEHA prohibits an employer from discriminating against an employee because of the employee’s "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation." In addition to barring discrimination against a person on the basis of these characteristics, the FEHA also prohibits discrimination against someone "associated with a person who has, or is perceived to have, any of those characteristics."

It is unlawful for an employer to deny employment benefits, harass, or intimidate any employee because the employer disapproves generally of the employee’s association with individuals because they are in a category enumerated in the Act. Cal. Code Regs § 7287.9. Thus, the FEHA and its supporting regulations expressly provide a cause of action for unlawful discrimination based on an association with someone who is, or is perceived to be in a protected class. Mere acquaintance or friendship may be sufficient to trigger association discrimination. So long as an "association" exists, the member of the protected class can be a relative, spouse, friend or acquaintance. Moreover, the FEHA prohibits association discrimination based on the employer’s perception that the third party is a member of a protected category. Thus, it is not necessary that the third party actually belong to a protected category if the employer perceives the third party to have any of the protected characteristics.

Of course, the employee suing for association discrimination still must show that the employer had knowledge of the association, knew or perceived that the third party was a member of a protected class, and discriminated against the employee "because of" the association. The attorneys at Simpson, Garrity & Innes, P.C. can provide assistance and advice to ensure that your company complies with all applicable anti-discrimination laws.

As of March 27, 2008, employers will be subject to the following increased penalties for: (1) unfair immigration related employment practices (e.g., discrimination based on nationality or citizenship status) or (2) knowingly hiring, continuing to employ, recruiting or referring an undocumented worker:

• First offense: minimum penalty of $375 and maximum penalty of $3,200 per undocumented worker.


• Second offense: minimum penalty of $3,200 and maximum penalty of $6,500 per undocumented worker.
  
• More than two prior offenses: minimum penalty of $4,300 and maximum penalty of $16,000 per undocumented worker.

The civil penalties assessed for failing to comply with employment verification requirements (e.g., failure to properly complete Form I-9, failure to retain the Form I-9 for required time period, and refusal to accept permissible documents presented by the employee) have not been increased and remain at $110 to $1,100 per violation. As a reminder, the U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the Form I-9 for use by employers which modifies the list of documents that can and cannot be used to verify an employee’s identity and work authorization.

If you have questions regarding compliance with employment eligibility verification requirements, please contact the shareholders at Simpson, Garrity & Innes, P.C. – Paul V. Simpson, Ronald F. Garrity, Laura E. Innes, Marc L. Jacuzzi. 601 Gateway Boulevard, Suite 950, South San Francisco, CA 94080. (650) 615-4860