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Earlier this week, the Supreme Court killed one of the few remaining mechanisms for employees to get some measure of justice for the illegal acts of their employers – class arbitrations. The National Labor Relations Act (“NLRA”) was enacted in 1935 to protect the right of workers to band together and engage in collective action for their mutual aid and protection. Normally, the NLRA protects workers in the context of a union- when the workers are forming a union, when they are engaged in collective bargaining, and during strikes. However, even in non-union contexts, the NLRA protects workers who engage in collective action.

In Epic Systems Corp. v. Lewis, the Supreme Court decided that the NLRA does not protect the right of workers to engage in collective action through class-wide arbitrations, and instead, employers can compel employees to one-on-one arbitration for any workplace disputes or claims. In doing so, the Court ignored the realities of employment arbitration agreements and shifted the power squarely to employers.

Employees rarely “agree” to arbitration. Employees are often confronted with take-it-or-leave-it arbitration agreements – if the employee doesn’t sign, she doesn’t get the job. In the past, many arbitration agreements would require employees who sign the arbitration agreement to waive their right to go to court, and instead forces the employee into closed-door arbitrations. Usually the agreements include any claims – including discrimination and wage and hour claims.

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Three Laotian correctional guards were subject to racial and national origin discrimination and harassment.  They filed a civil lawsuit for discrimination under the California Fair Employment and Housing Act, and also filed claims under California’s Workers’ Compensation Act.  Ly v. County of Fresno (October 12, 2017).

This sounds like the beginning of a very typical workplace claim. However the Court brought the civil claims to a very atypical, and I must say, poorly reasoned and dangerous, ending.

The Workers Compensation Act claim went to a hearing first and the Administrative Law Judge found that the employer’s actions were “non-discriminatory, good faith personnel decisions.”  Based on this finding in an administrative hearing, where there is no civil discovery, the impetus to put on witnesses and gather evidence is different, and, among many other differences, the legal standard is different, the Court of Appeals held that the employees’ civil claims were barred.

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May 1 is International Workers’ Day, or May Day, and is a day to celebrate laborers and workers. It also commemorates workers who were killed while on strike protesting for an eight-hour work day in Chicago during what is known as the Haymarket affair. Just in time for May Day, yesterday the California Supreme Court adopted a new test for determining whether a worker is an independent contract or an employee.

The distinction in being classified as an independent contractor or an employee is an important one. Numerous laws protect the rights of employees, but do not protect independent contractors. For example, California’s minimum wage, overtime, meal period, and rest break laws apply to employees, but do not apply to independent contractors. Many employers misclassify their workers as independent contractors instead of employees to avoid having to comply with the many laws and regulations that protect employees – usually to shift costs onto the worker and off of the company.

Although the employee vs. independent contractor debate has raged on for many years, it has been in the spotlight with the explosion of the so-called “gig economy.” A number of decisions have come down through the courts and through the regulatory agencies, and depending on which law applies, different tests apply for how an employee is classified. However, the California Supreme Court has now definitively adopted a new test for determining whether a worker is an employee or an independent contractor under the California Wage Orders in Dynamex Operations West, Inc. v. Superior Court (Lee).

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When you think about it, how could a jury fail to convict a man who sexually assaulted 60 ( yes, that is SIXTY, or sixty, or OMG s-i-x-t-y) women, almost all of whose stories are eerily similar?  That is, he gave them alcohol and drugs, such as Quaaludes, and then sexually assaulted them. Guilty, guilty, guilty.

As we watch the re-trial of the famous Bill Cosby for his sexual assault of Andrea Constand, we have to wonder why he wasn’t convicted the first time (i.e., why did the case result in a mistrial?) and, given the ascent of the #metoo movement, with the accompanying consciousness raising, whether justice will be done in the retrial. The jury hasn’t yet started to deliberate but some lessons can already be learned.

First, of course, the burden of proof is simply higher in a criminal case than in a civil case, and there are good policy reasons for that. We want to be very sure when we put someone behind bars. Second, the jury pretty much never has the entire story. In the first trial, the judge only allowed one other victim to testify, and in the re-trial, 5 victims have testified. In all cases, for reasons both right and wrong, not all evidence is heard by the jury. And lastly, it is unusual for a civil case involving incidents so far into the distant past to proceed, which does provide reasons to sow reasonable doubt, and to question witnesses’ and victims’ memories and motives, in this criminal case.

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There are so many thoughts, legal theories and emotions swirling around and within me, as a 35-year lawyer (here, I mean practicing law for 35 years, not 35 years of age!) watching the #metoo movement unfold.

First, social norms are so well ingrained that we, as a society, often do not question what should be questioned.  The line between appropriate behavior and inappropriate but- we-have-to-put-up-with-it behavior is simply blurred.  I am grateful beyond belief to those brave souls, those who question the way things are, for shinning a floodlight on these deep dark not-so-secret societal norms.

Second, my own experiences are like an onion. The outer skin protects a lot of interior sections of which I am not always so cognizant. When peeled back, the memories are hazy but powerful. My outer skin is: no, no, lucky me, I am fortunate and have not been subject to sexual harassment.  But it isn’t true. I feel this way due to years of denial and a well-honed ability to minimize.  It is my denial mechanism that has made me a successful lawyer and advocate.  But this ability to minimize, ignore and excuse doesn’t help change society, and change is what we need.

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This Ninth Circuit case addressed a typical “good ol’ boy” attitude at work: a male co-worker accused of anything – here rape of the Plaintiff co-worker – is treated with empathy and kindness.  The female co-worker, who made this very serious accusation, is simply not treated as well: no support; no kindness; no concern.

In Fuller v. Idaho Department of Corrections (9th Cir. 2017) 865 F.3d 154, the Ninth Circuit stressed the importance of how this imbalance impacted the employee/rape victim and how a reasonable jury could conclude that the employer’s conduct “effectively condoned the rapist” and thus, created a hostile work environment for the victim.  In doing so, the Ninth Circuit overturned the lower court’s summary judgment in favor of the employer.

When the employer learned that a male employee was being investigated by the sheriff for the rape of an employee, it put the co-worker on a paid administrative leave, and did not warn any of its employees. (Yes, we understand the difficult balancing test between safety and privacy).  The employer, Department of Corrections, not only paid the co-worker while on leave but gratuitously noted that it “looked forward to…[his]…prompt return to work.”  (Yes, this case was before the #MeToo movement.)  Ms. Fuller, who had a relationship with the co-worker, disclosed the relationship to her employer.  The employer did nothing to warn or protect her, and she was subsequently raped by this same co-worker.

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Last month, we discussed the new changes to the Equal Pay Act that will prohibit employers from relying on an applicant’s prior salary to determine how much to pay the applicant.

As happens at this time of the year, the governor signs a number of pieces of legislation, many of which impact employees. Today we are looking at a few more important pieces of legislation protecting employees with criminal histories, women, immigrants, and families.

First, Governor Brown signed Ban the Box. This legislation broadens the current legislation.  Now, it will be an unlawful employment practice to ask a potential employee about his or her criminal convictions or to consider any convictions until after a conditional offer of employment is made. After making such an offer, the law sets forth limits on how an employer may consider facts surrounding a conviction, including an individualized assessment and notice. The law applies to employer’s with over five employees.  See, AB1008.

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Wage disparities between men and women continue to be a significant problem even today. In 2016, the Bureau of Labor Statistics found that female full-time wage and salary workers only made 88% of what their male counterparts made. (https://www.bls.gov/regions/west/news-release/womensearnings_california.htm)  So, for every $100 a man earns, his female counterpart only earns $88. Recently, two tech giants have been in the news because female employees filed lawsuits for gender-pay discrimination.

 In recent years there have been several legislative changes strengthening the equal pay law in California. The California Equal Pay Act prohibits an employer for paying a male employee more than a female employee “for substantially similar work.” Cal. Labor Code § 1197.5. The California Equal Pay Act applies to all California employers, regardless of the size of the employer.  The California Equal Pay Act also prohibits employers from discriminating or retaliating against an employee for invoking rights provided by the law or helping another person invoke her rights under the law.

 On January 1, 2017, the Fair Pay Act was expanded to address compensation disparities between members of one race or ethnicity and those of another race or ethnicity. For example, women of color are often paid less than white women, and the changes to the law allow women of color to make a claim where this occurs. See Cal. Labor Code § 1197.5(b)

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Recently the U.S. Justice Department submitted a brief in Zarda v. Altitude Express arguing that Title VII of the Civil Rights Act does not protect workers from discrimination based on their sexual orientation. Donald Zarda was a skydiving instructor who sued his employer for discriminating against him based on his sexual orientation in violation of Title VII.  Title VII, a federal law that prohibits discrimination, specifically prohibits employment discrimination based on “sex.” The U.S. Justice Department’s position is that discrimination based on “sex” does not include discrimination based on sexual orientation. This position is a departure from the position of the U.S. Equal Employment Opportunity Commission which has argued for years that sexual orientation discrimination is sex discrimination.

Courts have differed on whether Title VII protects workers on the basis or their sexual orientation or not. This has led to a split of authority in several federal districts. For example, in 2000, the Seventh Circuit decided that Title VII did not protect workers on the basis of their sexual orientation, but earlier this year, the Seventh Circuit sitting en banc came to the opposite conclusion: that Title VII does in fact protect workers based on their sexual orientation. Compare Hamner v. St. Vincent Hospital & Health Center, Inc. (7th Cir. 2000) 224 F.3d 701 and Hively v. Ivy Tech Community College of Indiana (April 4, 2017, en banc.)

While federal courts continue to argue the meaning of “sex” under Title VII, California employees can rest assured that they are protected from discrimination based on their sexual orientation. The California Fair Employment and Housing Act (“FEHA”) explicitly prohibits discrimination against any person because of his or her sexual orientation. This means that employees in California are protected from discrimination based on their actual and/or perceived sexual orientation. Cal. Gov. Code §§ 12926(o), (s); 12940(a)-(d). Like Title VII, FEHA also prohibits discrimination based on “sex” but FEHA expressly defines “sex” to include “gender” which is defined as a person’s “gender identity” and “gender expression.” Cal. Gov. Code § 12926(r)(2).

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Seldom do employee-side lawyers cheer a ruling for the employer, but the Ninth Circuit decision holding that homophobic behavior in the workplace is not justified by an employee’s right to religious freedom was correctly decided and is good for employees.

In Flanagan v. City of Richmond (Ninth Circuit June 19, 2017) No. 15-17258, Ms. Flanagan claimed she was fired for her religious disapproval of homosexuality.  The record reflected that she manifested this intolerance by, for example, forbidding a lesbian intern from entering the workplace, leaving her stranded in the waiting room and declaring that she wouldn’t be going to heaven.

The court observed that although Flanagan’s religious speech may have touched on a matter of public concern her free speech, when balanced against the “… interest in maintaining a discrimination – and harassment – free environment” must fail.

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