Labor News & Commentary March 31, 2024 California considers a "right to disconnect & more

[Omaha Steve]

https://onlabor.org/march-31-2024/

By Otto Barenberg

Otto Barenberg is a student at Harvard Law School.

In today’s news and commentary, a federal judge rejects Tesla’s motion to dismiss an EEOC race discrimination lawsuit; a new OSHA rule empowers workers in safety inspections; and California considers a “right to disconnect.”

In a decision released on Friday, a Northern District of California judge denied Tesla’s motion to dismiss an Equal Employment Opportunity Commission (EEOC) lawsuit alleging racial harassment and retaliation at its Fremont, California facility. “The N-word and other racial slurs, epithets, and stereotyping permeated Tesla’s Fremont Factory,” the complaint claims, as did racist graffiti “evocative of lynchings.” The complaint further asserts that Tesla retaliated against Black employees who reported harassment by subjecting them to internal disciplinary procedures, reassigning them to less desirable roles, and firing them altogether. The judge found that the EEOC’s complaint alleged sufficient facts to state a claim under Title VII of the Civil Rights Act of 1964, while rejecting Tesla’s arguments that the EEOC failed to engage in pre-suit conciliation and that parallel state court proceedings require a stay of federal litigation. The EEOC lawsuit comes on the heels of an April 2023 federal jury award of $3.2 million to Tesla employee Owen Diaz for substantially similar claims of racial abuse at the Fremont factory.

On Thursday, the Occupational Safety and Health Administration (OSHA) promulgated a final “walkaround” rule that empowers workers to authorize non-employees, including union affiliates, to accompany and advise OSHA inspectors. Non-employee representatives must be “reasonably necessary” to ensure an “effective and thorough” inspection, a requirement satisfied by language skills or expertise with workplace hazards. OSHA’s guidance suggests that representatives can wear clothing indicating their union affiliation but may be prohibited from discussing issues unrelated to the inspection with workers. SEIU Local 32BJ President Manny Pastreich praised the new rule, which will take effect on May 31: “We commend President Biden for putting the force of law and the power of OSHA’s authority behind the workers’ right to choose their own representative, thus ensuring a fair and accurate inspection takes place.” However, a federal court challenge is likely. “The Chamber [of Commerce] is considering all options, including litigation,” Marc Freedman, the Chamber of Commerce’s vice president for workplace policy, told Bloomberg News.

Finally, a new California bill would give employees the legal right to ignore communications from their bosses during non-work hours. Assemblymember Matt Haney, who proposed the legislation, took inspiration from France, Germany, Italy, Belgium, and Australia, which have all taken substantial steps towards enshrining a “right to disconnect.” The California bill would require employers to limit off-hour communications to emergencies or urgent scheduling changes, and the state labor commission would impose fines on employers after three violations. “There’s an availability creep that has reached into many people’s lives, and I think it’s not a positive thing for people’s happiness, for their well-being, or even for work productivity,” Assemblymember Haney told the New York Times.