by

Just ahead of the bill-signing deadline in October, Governor Newsom signed several worker-friendly bills including AB 51, AB 9, SB 142, and AB 749.

When an employment situation sours and an employee pursues his rights, usually at some point there is talk of settlement.  Almost routinely, employers include a no-rehire provision in any settlement agreement which prohibits the former employee from seeking reemployment with the employer. While this may not seem like a big deal if you work for a small company and have no intention of seeking reemployment with the same people who wronged you in the first place, for individuals who work for large employers, the no-hire provision can create significant hardship. For example, if you work for a major retailer with numerous locations and you are terminated, a no-rehire provision might prevent you from working for that company ever again, in any capacity. That means, even if you wanted to work for a store 100 miles away, you would be barred from doing so. This is particularly problematic for long-term employees who have deep knowledge of the employer’s policies and practices and have been successful in their positions for years- they know the job, and have done it well, and now they are unable to apply for any future job at the company where their skills are a perfect match. This is also a significant problem for people who work for a utility; it may be that there is really only one employer in the area you can work for and a ban on working for that company will prevent you from working, period. The no-rehire provision would require you to either move to a new location or develop skills for an entirely different field. It seems, to many employees, like a final act of retaliation by their former employer.

Starting January 1, 2020, employment dispute settlement agreements cannot contain a no-rehire provision and such provisions are void as a matter of law and public policy. There is an exception, undoubtedly inspired by the #MeToo and #TimesUp movements- if an employer has made a good faith determination that the terminated employee engaged in sexual harassment or sexual assault, the employer may prohibit or restrict the terminated employee from obtaining future employment with the employer.

Continue reading

by

In June 2017, San Francisco enacted a groundbreaking ordinance that requires employers to provide lactating employees with reasonable breaks and a safe, clean space to pump breast milk. The ordinance acknowledged the health benefits and importance of breast feeding to both children and lactating mothers. The ordinance also prohibited employers from retaliating against women who attempted to exercise their lactation rights and provided enforcement procedures. However, the ordinance only applied to employees who worked in San Francisco.

Although California has had basic “lactation accommodation” requirements since 2002, earlier this month, the legislature enacted an amendment to the Labor Code to provide lactation rights, similar to those enacted in San Francisco, to employees throughout the state. The changes to the law provide that a lactating employee is permitted a “reasonable amount” of break time to express breast milk for her child, each time she needs to do so, as well as a private room to express breast milk.

Even prior to these amendments, employers were supposed to provide a room other than the bathroom for an employee to express breast milk. The changes to the law reiterate that the room shall not be the bathroom and also sets forth several additional requirements including that the room must: (1) be safe, clean, and free of hazardous materials, (2) contain a surface to place a pump and personal items, (3) have a place to sit, and (4) have access to electricity or alternative devices (i.e. extension cords or charging stations). In addition, an employer must provide a sink and refrigerator (or other “cooling device” if a refrigerator cannot be provided) for storing breast milk.

Continue reading

by

As employers across the country reckon with the impacts of the #MeToo movement, the California legislature and Governor Newsom took decisive action to extend the statute of limitations on certain workplace claims, acknowledging that those who have been targeted by discrimination, harassment, and retaliation do not always come forward immediately.

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

Continue reading

by

For years, the battle over arbitration clauses and agreements has raged on in courts and legislatures throughout the country. The latest development in arbitration in employment in California came on Thursday in California when Governor Newsom signed AB 51. The governor’s approval of AB 51 is a victory employees throughout California- it effectively prohibits employers from forcing employees into mandatory arbitration agreements starting January 1, 2020.

It is common practice throughout California to have an employee sign an arbitration agreement at the time she is hired. These agreements are generally non-negotiable, buried in a pile of new hire paperwork, and require the employee to arbitrate any claims arising out of employment. While valid arbitration agreements provide some of the safeguards that are afforded to litigants in court, it often takes away basic protections and rights including a trial by jury, and class or collective action. Arbitration is also a private process so it allows an employer to keep their wrongdoing under wraps.

The United States Supreme Court has said, repeatedly, that arbitration agreements are valid in the employment context. Recognizing the inherent imbalance in power between employers and employees, several states have tried to stop employers from forcing employees into arbitration. However, given the Supreme Court’s rulings, it is impossible to ban arbitration in employment altogether.  The hope is that in California, AB 51 will even the playing field before an employee signs an arbitration agreement; requiring that an employee can only enter such an agreement voluntarily. The law also prohibits an employer from retaliating against an employee who declines to enter into an arbitration agreement, which provides additional protection.

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

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).

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

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.

Continue reading