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July 2013 Archives

Must be able to hire and fire to be considered a "supervisor", says U.S. Supreme Court

Resolving long-standing confusion over how to determine who is a supervisor under Title VII, the Court adopted the more stringent, pro-employer standard that people must have authority to take adverse employment actions (e.g., hiring, firing, demotions, etc.) to be considered supervisors. The alternative standard, followed by the Equal Employment Opportunity Commission (and various courts), was that supervisors only needed to be able to significantly influence co-workers' employment. Whether someone is considered a supervisor is particularly important for harassment cases brought under Title VII, the federal anti-discrimination law, as different rules apply to harassment committed by supervisors, as opposed to just co-workers. Employers must have actually been negligent in allowing co-worker harassment to be liable for it, whereas they are automatically liable for supervisor harassment, barring an affirmative defense. The Court issued its ruling in Vance v. Ball State University, in which a cafeteria employee claimed she had been harassed by a co-worker who "glared at" and "intimidated" her. Although Vance is a Supreme Court ruling, it should not impact most harassment cases in California, which are generally brought under the state's anti-discrimination law, the Fair Employment and Housing Act ("FEHA"). FEHA specifically defines supervisors in the less-stringent way advocated by the EEOC. 

Employees working 24-hour shifts not entitled to be paid for designated sleep time

So long as they provide suitable sleeping quarters and have clear contracts, employers can refuse to pay employees working 24-hour shifts for time they can be sleeping. In Mendiola v. CPS Security Solutions, Inc., a California appellate court clarified that all employers can exclude sleep time from 24-hour work shifts. Prior to Mendiola, many believed that only ambulance providers could refuse to pay for sleep time for 24-hour employees, given that the sleep exclusion in the state's Wage Orders only applied to ambulance drivers (and attendants). But in Mendiola, the Court held that any employer can refuse to pay for sleep time during a 24-hour shift, provided it has a prior agreement with its employees not to consider the time as compensable. Employers must also provide comfortable places for their employees to sleep, and the sleep time cannot be interrupted. It is unclear how much of a designated sleep period must be compensated if it is interrupted, although certainly whatever time employees must actually work during the interruption must be paid, at a minimum. Mendiola also held that "on call" time must be compensated if employees remain under their employers' control while on call. For example, Mendiola involved security guards who were required to live on-site in trailers, where they could rest and relax but not have guests, pets or alcohol. Given these restrictions, the employees remained under their employer's control such that the time they spent on-call in their trailers had to be paid.

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