Rounding Time to the Quarter Hour
The Ninth Circuit upheld a neutral policy under which an employer rounded time to the nearest quarter-hour.
The time clock system would automatically round back for 7 minutes or less of time worked in the 15-minute period, and would round ahead for 8 or more minutes. The rounding mechanism was not allowed to be edited by managers.
On that basis, the Court held that the rounding system was neutral on its face. And as applied to the plaintiff, he lost just $15.00 in pay over the 13 months of punches that he made. That's how neutral rounding is supposed to pan out.
The Court found that this practice was lawful under both the federal Fair Labor Standards Act and the California Labor Code. The case is Corbin v. Time Warner Entertainment etc. and the opinion is here.
California Fair Employment Agency to Revise Gender Regulations
The FEHC is beginning the process of revising its regulations regarding gender identity. You can read the proposed revisions here. The proposed additions include a new provision on bathroom / locker facilities:
(A) Employers shall permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.There also is a proposed regulation regarding pronouns and names:
(B) To balance the privacy interests of all employees, employers shall provide alternatives if no individual facility is available, such as, locking toilet stalls, staggered schedules for showering, shower curtains, or other method of ensuring privacy. However, an employer or other covered entity may not require an employee to use a particular facility.
(C) Transitioning employees shall not be required to undergo, or provide proof of, any particular medical treatment to use facilities designated for use by a particular gender.
(D) Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.
(h) Recording of Gender and Name
(1) It is unlawful to require an applicant or employee to state whether the individual is transgender.
(2) If a job application form requires an individual to identify as male or female, designation by the applicant of a gender that is inconsistent with the applicant’s assigned sex at birth or presumed gender shall not be considered fraudulent or a misrepresentation for the purpose of adverse action based on the applicant’s designation.
(3) If an employee requests to be identified with a preferred gender, name, and/or pronoun, an employer or other covered entity who fails to abide by the employee’s stated preference may be liable under the Act, except as noted in subdivision (4) below.
(4) An employer may use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally- mandated obligation.
Here's a proposal about dress and grooming standards:
(g) Physical Appearance, Grooming, and Dress Standards. It is lawful for an employer or other covered entity to impose upon an applicant or employee physical appearance, grooming or dress standards that serve a legitimate business purpose, so long as any such standard does not discriminate based on an individual’s sex, including gender, gender identity, or gender expression.
However, if such a standard discriminates on the basis of sex and if it also significantly burdens the individual in his or her employment, it is unlawful. It is unlawful to require individuals to dress or groom themselves in a manner inconsistent with their gender identity or gender expression.
(1) It is unlawful for employers and other covered entities to inquire or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment, unless the employer or other covered entity meets its burden of proving a BFOQ defense, as defined above, or the employee initiates communication with the employer regarding any requested adjustment to the employee’s working conditions.
Attorney's Fees for Prevailing Employers Under Federal Anti-Discrimination Law?
The U.S. Supreme Court decided - 8-0 - that a prevailing defendant in a Title VII discrimination case (and that means ADA, ADEA and section 1988, too), may recover attorney's fees without winning "on the merits." That means, for example, if a plaintiff insists on bringing a frivolous case that is obviously barred by the statute of limitations, the employer can apply for attorney's fees even though the statute of limitations defense is not proof of non-discrimination. As Justice Thomas already points out, the defense already has to establish that the plaintiff's case was 'frivolous, unreasonable or groundless" because of an earlier Supreme Court case (that invented that standard). So requiring a win "on the merits" would have been a whole new burden and the Court wasn't having it. So, the EEOC owes CRST at least $4 million for its frivolous pursuit of CRST if that ruling holds up on remand. Wet blanket moment: Where will the EEOC get the money to pay those fees? Oh. Right. Us.
That case is CRST Van Expedited, Inc. v. EEOC and the opinion is here.
Statute of Limitations for Constructive Discharge Under Federal Law
The U.S. Supreme Court in an 7-1 decision decided that a "constructive discharge" or forced resignation claim is considered timely or untimely based on the date that the employee gives notice of resignation.
The Post Office in Green v. Brennan, opinion here, argued that the limitations clock begins to run when the employer performs the "last discriminatory act." But the Court disagreed and reversed the Tenth Circuit:
Ordinarily, a “ ‘limitations period commences when the plaintiff has a complete and present cause of action.’” Ibid. “[A] cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997).
Applying this general rule to the case before it, the Court ruled:
the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes the employee’s resignation for three reasons. First, in the context of a constructive-discharge claim, a resignation is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run. Second, nothing in the regulation creating the limitations period here, §1614.105, clearly indicates an intent to displace this standard rule. Third, practical considerations confirm the merit of applying the standard rule here.Of note, the Court made clear that the limitations period begins to run when the employee gives notice of the resignation, not on the date of the resignation.
