Employment Law This Week: FEHA Expansion, Class Waiver, Employer Conduct Rules, CA's Paid Family Leave Law

(1) FEHA Expanded to Include Associated Disabilities

Our top story: A California appeals court rules that employers must accommodate workers who are associated with a disabled person. A delivery driver for Dependable Highway Express requested a route that allowed him to administer dialysis for his son at night. After this request was denied, the driver refused his assigned route and was fired. The former employee sued, alleging disability discrimination under California’s Fair Employment and Housing Act (FEHA). While the trial court ruled in favor of the company, the Second District Court of Appeal reversed the decision. The appeals court stated that, unlike federal law, the California statute requires employers to provide accommodations based on an employee’s relationship with a disabled person. Matt Goodin, from Epstein Becker Green, has more. For information on California’s amended FEHA regulations, click here.

(2) ALJ Finds That Class Waiver Violates NLRA

A wireless company’s class waiver provision violates the National Labor Relations Act (NLRA). That’s according to an administrative law judge (ALJ) who cited National Labor Relations Board (NLRB) decisions in Murphy Oil and DR Horton— rulings that rejected arbitration agreements that bar class or collective actions by employees. The ALJ ruled that, even though federal appeals courts have challenged the legality of the NLRB’s position, he is bound by the NLRB’s interpretation “unless and until the Supreme Court rejects it.” This ruling could set the stage for the U.S. Court of Appeals for the Ninth Circuit or D.C. Circuit to weigh in on the NLRB’s interpretation, which has already been rejected by the Fifth, Second, and Eighth Circuits. So far, with very limited exception, the NLRB has refused to yield, now routinely invalidating arbitration agreements with class waivers. For more on the NLRB precedent, click here.

(3) NLRB Splits on Employer Conduct Rules

A hospital in Michigan must change rules that regulate interaction between employees, the NLRB says. Among other things, the hospital’s rules barred “negative or disparaging comments” of employees or physicians. The NLRB found that, while the rules do not expressly prohibit an NLRA-protected activity, they restrict relationships and interactions between employees, which could restrict federal labor law rights. One board member dissented from the finding, arguing that the current test could result in neutral work rules being declared unlawful. He called for a new test that considers not only employee rights but a balance of legitimate employer interests as well.

(4) California Expands Paid Family Leave

Continuing the legislative trend that we reported on last week, California's governor has signed a new policy to expand the state's paid family leave law. The legislation increases benefits to 60 percent of wages, capped at around $1,100 a week for six weeks. The new policy will take effect in 2018.

(5) In-House Tip of the Week

Jessica Hodkinson (Chief Counsel – Litigation and Labor & Employment for Panasonic Corporation of North America) gives her advice on best practices for avoiding risk during the employee life cycle. See the extended version here.