The Employee Matters marks the end of 2014 with a“Top Five” list. Interest in “Top Ten” or “Top Five” lists is so immense that psychologists have even coined the term the “Top Ten Effect,” to describe the “bump” that items on such a list receive in terms of sales. A list of the top developments in employment law may not cause a run on any stores, but policy makers and working people should take note (drum roll please) as we now count down the list of five developments that will change the landscape of employee rights as we enter the new year.
No. 5: New California Law Says Proof of Sexual Desire is Not Required to Win Sexual Harassment Claim
The California Legislature deserves recognition for a new law that strengthens protection against sexual harassment on the job. For years, employers have tried to defend against sexual harassment claims by arguing that the harassment, although boorish, was not illegal because it was not based upon sexual desire. This “defense” goes something like this — The boss who “joked” with his female subordinate about hopping over to a motel for the night wasn’t actually attracted to her, so that couldn’t be sexual harassment. Or as the employer claimed in one infamous case, the ironworkers who hazed a new guy on the crew with threats of sexual violence couldn’t have perpetrated sexual harassment since they were all straight. Earlier this year, the California legislature took away this excuse when it amended the Fair Employment and Housing Act to specifically provide that “sexually harassing conduct need not be motivated by sexual desire.” These few short words will provide powerful protection for victims of workplace sexual harassment. As important, the change reminds employers and the courts that sexual harassment is about abuse of power, not sex.
No. 4: California Supreme Court Guarantees that Undocumented Workers are Protected Against Discrimination
The California Supreme Court took aim at the hypocrisy of employers who hire and exploit undocumented workers. It has often been noted that low wage workers, regardless of their immigration status, are frequent victims of workplace violations. Undocumented workers, fearful that any complaint regarding a violation of these rights might result in their deportation, are a particularly vulnerable group. This year, in Salas v. Sierra Chemical Company, the California Supreme Court ruled that an employer who discriminates or retaliates against an undocumented worker can be held liable. While the case limits the damages available to these employees, it does provide that employers who violate the workplace rights of undocumented employees will be held accountable for their actions.
No. 3: Public Awareness and Outrage are Building against Wage Theft as Employee Rights are Vindicated in High Profile Cases
While the phrase “wage theft” has been around for years to describe employers who fail to pay overtime or other wages earned by their employees, a number of cases in 2014 have raised public awareness and built public outrage regarding the all-too-common practice of employers forcing employees to work without pay. Studies suggest that employers are ripping their workers off to the tune of more than $50 billion annually.
The year began with a high profile wage-theft story from an unlikely quarter with the filing of a class action lawsuit against the Oakland Raiders by one of their cheerleaders, Oakland Raiderette Lacy T. The lawsuit sparked similar lawsuits at four other NFL franchises and, as important, a national conversation about wage theft. In March, seven class action lawsuits were filed across the country against MacDonald’s on behalf of workers in the fast food franchise restaurants alleging its franchises did not pay employees for all hours worked and forced them to work through breaks. Challenges to wage theft kept rolling throughout the year. In November, employees of Yank Sing, a high end San Francisco dim sum restaurant recovered a landmark settlement through the California Labor Commissioner — $4 million in back pay and benefits for “blatant” wage theft. These high profile lawsuits have increased public awareness of wage theft and their examples serve as a deterrent to future wage theft.
No. 2: National Labor Relations Board Opens the Door for Retail Workers to Organize by Department
The federal administrative agency that oversees labor-management relations also took steps to level the playing field for workers in 2014. In July, the NLRB issued a decision that makes it far easier for unions to get a foothold in large retailers, including Walmart. In a case involving Macy’s department store, the NLRB ruled that the United Food and Commercial Workers could organize a subgroup of 41 cosmetic workers at a 150-employee store. Before this change, unions faced huge challenges because they were required to win storewide votes. As of 2013, only 4.6% of workers in the retail industry were members of unions, as reported by the Wall Street Journal. That’s down from more than 6% in 2003. The UFCW is campaigning to organize retail workers at stores like Bloomingdales, Macy’s, Target and, of course, Walmart.
No. 1: Increases in Minimum Wage for Workers
Without question, the movement that gained the most momentum this year for workers was the campaign to increase the minimum wage. President Obama called upon Congress to raise the minimum wage from $7.25 an hour to $10.10 an hour, and signed an Executive Order to raise the minimum wage to $10.10 an hour for new federal contract workers. Unfortunately, the gridlocked Congress did not act to increase the minimum wage that applies to all workers around the nation. However, eleven states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Rhode Island, Vermont, and West Virginia) and the District of Columbia did raise their minimum wage.
As of January 1, 2015, twenty-nine states and the District of Columbia will have minimum wages that exceed the paltry $7.25 per hour that workers earn under the federal minimum wage. The highest minimum wage in the nation is in the District of Columbia, where the minimum wage is $9.50 an hour. And, by January 1st, six other states (California, Connecticut, Massachusetts, Rhode Island, Vermont and Washington) will have legally mandated minimum wages of at least $9.00 an hour. While significantly more work remains to be done in this area, increases in the minimum wages are a meaningful development for millions of low-wage workers in this country.
So, as the year 2014 comes to a close, let’s toast these advancements for workers and rededicate ourselves to improving the working lives of all employees in the new year.