Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

Upcoming Talks

May 29, Irwindale "The Impact of the New Minimum Wage on All Employers" Click here for more information.

 

July 9, City of Industry “HR4U 101 Full-day Workshop" Click here for more information.

 

July 17, West Covina "Critical Human Resources Issues for Business Owners" Click here for more information.

 

Happy Nails DLSE/EDD Independent Contractor Determination Conflict

Happy Nails defeated an EDD claim but then lost an identical claim by the Labor Commissioner. Happy Nails is a salon in which cosmetologists provide manicures, pedicures, and face and skin treatments to clients. It hired independent contractors to work as cosmetologists in its salons. The California tax agency, the EDD, brought an administrative claim against Happy Nails, alleging that the cosmetologists were improperly classified. The EDD claimed that the workers were actually employees. The agency sought payment of payroll taxes.

 

Happy Nails challenged the EDD in an administrative appeal and won. The administrative judge determined that the cosmetologists were genuinely independent. Specifically, the administrative law judge found the cosmetologists were not terminable at will, but could only be terminated for death, bankruptcy, or gross violation of the written contract with the salon; the salons exercised no control over the cosmetologists, who used their own skill and judgment in performing services; the cosmetologists provided, at their own expense, many of the materials and all of the equipment they used; the cosmetologists were engaged in a skilled occupation that required many hours of training for licensure; and the processing of payments for services was handled by an independent third party.

 

However; another California agency, the Labor Commissioner, cited Happy Nails for Labor Code violations. Like the EDD, this sister agency claimed that the workers were actually employees, who deserved itemized wage statements.

 

Happy Nails appealed this agency citation. This time the Labor Commissioner’s administrative judge ruled that the workers were employees.Happy Nails appealed this new decision to state court. It argued that the EDD judge decided that the workers were independent, and that ruling should be binding on the Labor Commissioner as well. The appellate court agreed with Happy Nails.

 

The appellate court noted that the EDD and Labor Commissioner hearings considered the identical issue and applied the identical law regarding independent contractor status. Under these circumstances, the EDD ruling was binding and controlling on the Labor Commissioner. The court determined that both agencies are California agencies who are both charged with enforcement of laws designed to benefit and protect employees. A case decided against one should be binding on the other.

This decision is should be helpful to California employers and hopefully prevent one CA agency trying to second guess another CA agency.

 

Platinum P.T.S. Pays $100k to Settle EEOC Pregnancy Discrimination Lawsuit

Platinum P.T.S., Inc., a Laredo, TX-based  company which provides oil/gas testing, measuring, surveying and analysis  surveys, and oil and gas exploration and development, will pay a former  employee $100,000 to settle a pregnancy discrimination lawsuit brought by the  EEOC.

 

The EEOC's lawsuit charged that Platinum P.T.S fired a clerk after she requested time off for  medical treatment to address a miscarriage.   A companion suit filed by the former employee accused Texans Oil & Gas Services, a related company owned and managed by the President of Platinum, P.T.S., of pregnancy discrimination based on her termination.

 

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended the Pregnancy Discrimination Act of 1978 (PDA).  Under the PDA, employers are prohibited from engaging in sex discrimination on the basis of pregnancy, including making employment decisions based on childbirth or any medical conditions affected by pregnancy.  It is a violation of federal law to fire an employee because she became pregnant and then suffered complications. 

 

According to the EEOC, "Employers must be on notice that it can be illegal and costly to treat pregnant employees differently solely because of their pregnancy or pregnancy-related condition. Employers should not assume that miscarriages will affect employees' ability to work."

 

In recent years, the EEOC has seen a significant increase in the number of pregnancy discrimination charges.  In fiscal year 2012, the EEOC received 30,356 charges of sex-based discrimination, of which 3,745 alleged pregnancy discrimination.  In that year the EEOC recovered $14.3 million in monetary benefits for pregnancy discrimination victims through settlements, plus more monetary benefits obtained through litigation.

 

Factoids

Overexertion ranked first as a leading cause of disabling injury in 2011, according to the just-released 2013 Liberty Mutual Workplace Safety Index. The latest index identifies the top ten causes of the most disabling workplace injuries/illnesses for 2011.

• According to the data collected, overexertion cost U.S. businesses $14.2 billion in direct workers’ compensation costs and accounted for 25.7 percent of the overall national burden of $55.4 billion, finds the index. Injuries relating to lifting, pushing, pulling, holding, carrying, or throwing made up the overexertion event category.

• In the ranking, overexertion was followed by falls on the same level, struck-by events, falls to a lower level, and other exertions or bodily reactions.

 

Employer healthcare costs are expected to rise nearly 9% in 2014, a slight improvement over recent years, according to a new survey by Buck Consultants.

 

Quotes

“Human beings tend to be unable to estimate how biased they are.”

~Jean-Francois Manzoni~