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11/05/2005
11/01/2005
DFEH To Promulgate Sexual Harassment Training Regs
Jackson Lewis has the scoop, here.
AB 1825, the law that requires employers with more than 50 employees to train their managers on sexual harassment, is now in effect. But with the little guidance it gets, I’ve had a lot of questions. Who can do the training? Can you do the training? What does it have to cover? Who is a supervisor according to this law? Etc. etc.
Hopefully these regulations will provide some guidance. According to the article linked above, California licensed attorneys can do the training (all-righty then). The trainer should be able to cover:
(A) what is unlawful harassment;
(B) how to intervene when harassing behavior occurs in the workplace;
(C) how to report harassment complaints;
(D) how to respond to a harassment complaint;
(E) how to investigate harassment complaints and an employer's obligation to do so;
(F) the illegality of retaliation for filing a harassment complaint and how to prevent retaliation from occurring when an employee has filed a harassment complaint; and
(G) the employer's anti-harassment policy.
AB 1825, the law that requires employers with more than 50 employees to train their managers on sexual harassment, is now in effect. But with the little guidance it gets, I’ve had a lot of questions. Who can do the training? Can you do the training? What does it have to cover? Who is a supervisor according to this law? Etc. etc.
Hopefully these regulations will provide some guidance. According to the article linked above, California licensed attorneys can do the training (all-righty then). The trainer should be able to cover:
(A) what is unlawful harassment;
(B) how to intervene when harassing behavior occurs in the workplace;
(C) how to report harassment complaints;
(D) how to respond to a harassment complaint;
(E) how to investigate harassment complaints and an employer's obligation to do so;
(F) the illegality of retaliation for filing a harassment complaint and how to prevent retaliation from occurring when an employee has filed a harassment complaint; and
(G) the employer's anti-harassment policy.
10/31/2005
Is California "anti-business"?
You've heard a lot about California being "anti-business" and its laws and policies being hostile to employers. It's an article of faith among some of my colleagues. Apparently, ho
In other words, someone is creating a positive-feedback loop that is scaring the crap out of medium and small businesses in the state, driven by a justifiable frustration at complicated regulation. Nonetheless, fear-mongering at the state of things in the world's fifth largest economy is not productive. One wonders whether the rust-belt states are claiming the same problems as they lose population in droves to the sun-belt. California is a great place to do business, especially relative to where else you can go, even if sub-optimal in all aspects.
You can read the entire report here in the California Economic Policy Journal.
- California does in fact lose business and jobs because of relocation, but the effect on employment is negligible. In any year from 1993 to 2002, the net job loss from business relocation was never higher than one-tenth of 1 percent of the total number of jobs. . .
- Employment change is primarily driven not by interstate relocation but by the expansion and contraction of existing businesses and by the births of new businesses and the deaths of existing ones. . .
- When they do move, businesses are much more likely to move locally than across state boundaires. . .
In other words, someone is creating a positive-feedback loop that is scaring the crap out of medium and small businesses in the state, driven by a justifiable frustration at complicated regulation. Nonetheless, fear-mongering at the state of things in the world's fifth largest economy is not productive. One wonders whether the rust-belt states are claiming the same problems as they lose population in droves to the sun-belt. California is a great place to do business, especially relative to where else you can go, even if sub-optimal in all aspects.
You can read the entire report here in the California Economic Policy Journal.
10/28/2005
More on Wal-Mart
More on Wal-Mart.
Nathan Newman bombards Kevin Drum and Ezra Klein for widening the context of the Wal-Mart dispute.
And Newman may be right that allowing this potential violation in order to cure a health care issue isn't the law, but at least they aren't simply doing it to pad their pockets. Pure motive or not, they are trying to address an important social issue. That should be deemed a step in the right direction for a Wal-Mart antagonista.
Nathan Newman bombards Kevin Drum and Ezra Klein for widening the context of the Wal-Mart dispute.
Employers shouldn't be excused for completely rotten, immoral activities just because a better policy would make compliance with the law easier. This is bleeding heart liberalism applied to the largest corporation on earth, as if Ezra is excusing some kid caught purse snatching with the excuse that society had failed to provide better economic alternatives to a life of crime, so it's really society's fault that the victims lost their property.I've talked to people about this, and it's not clear what they are (were going to be?) doing is discriminatory. Even if it discourages "unhealthy" applicants (not a protected class as long as they aren't perceived as such), as long as they aren't trying to keep disabled people out, it's not illegal. Under disparate impact cases, there is a so-called "interest" defense (why you don't see WASPs bring class actions against strawberry farms). If it's just that people don't want that kind of job, it's basically ok. It depends on the intent.
And Newman may be right that allowing this potential violation in order to cure a health care issue isn't the law, but at least they aren't simply doing it to pad their pockets. Pure motive or not, they are trying to address an important social issue. That should be deemed a step in the right direction for a Wal-Mart antagonista.
Gattuso v. Harte-Hanks Shoppers, Inc.
The Second District has held that Labor Code section 2802 does not preclude employers from paying increased salaries or commissions in lieu of reimbursement for actual expenses.
10/27/2005
The Wal-Mart Memo: Does It Break The Law?
Wal-Mart has managed to create another PR nightmare for itself. This week, an internal memo (p.14) suggesting that Wal-Mart discourage unhealthy people from applying for jobs has raised hackles from the usual anti-Wal-Mart suspects. But it might also raise a lawsuit.
If you're reading this blawg, you're probably aware that the ADA and (in California) the FEHA prevent discriminatory hiring practices against those with disabilities.
Nothing in the memo suggests that this is anything but a proposal, and it probably wasn't vetted by the company's lawyers. Even still, nothing in it is per se discriminatory. Instead of trying to exclude the disabled, instead it's trying to attract health-conscious workers.
I'm not an ADA jock. I don't know enough to say for certain whether or not this all on its own violates the ADA, but my sense is that it doesn't, and, if it does, it's bad policy. Given the bovine nature of America, the country's largest employer should do something to encourage more physical activity!
The SEIU's spokesperson told the WSJ (sub. req'd) that
If you're reading this blawg, you're probably aware that the ADA and (in California) the FEHA prevent discriminatory hiring practices against those with disabilities.
Nothing in the memo suggests that this is anything but a proposal, and it probably wasn't vetted by the company's lawyers. Even still, nothing in it is per se discriminatory. Instead of trying to exclude the disabled, instead it's trying to attract health-conscious workers.
I'm not an ADA jock. I don't know enough to say for certain whether or not this all on its own violates the ADA, but my sense is that it doesn't, and, if it does, it's bad policy. Given the bovine nature of America, the country's largest employer should do something to encourage more physical activity!
The SEIU's spokesperson told the WSJ (sub. req'd) that
"When you add physical requirements to jobs that don't need them, you begin to weed out a whole pool of people such as the elderly, the obese, people with pre-existing medical conditions," says Andrew Stern, president of the Service Employees International Union, which represents 1.8 million workers, including health-care workers, janitors and security guards. "I think this memo steps over the line of what's legal," he adds.There is an argument that they might be unnecessarily adding tasks to job descriptions. Here's where I'd ask for some reader feedback. To what extend does the FEHA or ADA mandate than an employer create job descriptions? Can the ADA stop Wal-Mart from making cashiers collect carts? If so, what else can't they do? Do employer have to create job descriptions that are always carefully calibrated according to potential disability impact?
10/13/2005
2005 Legislative Summary [Draft]
Only a few employment-related bills made it through the legislative process this year. This is mostly a reflection of the split government. Remember, to an outside observer, California politics is polarized on a coprorate/union axis with other interest groups not holding nearly as much sway.
AB 1093 allows for final "termination pay" to be made by direct deposit to a bank with a location in California, even if not headquartered here. It also clarifies some aspects of a computer programmer's exemption from overtime rules. Nothing too big here.
AB 1311 harmonizes service rules between DLSE hearings and civil suits. No biggie either.
SB 101 is discussed below--only put the last 4 digits of a social on a pay stub!
Sb 184 ups a talent agencies bond requirement to $50,000. Hmph.
The gridlock in Sacramento has succeeded in doing one thing: limiting the amount of topics for people like me to speak about to potential clients in the spring. There really isn't that much change in the law this year. I think that's a good thing--so we can let all of the rapid change in the past few years sink in.
2005 -- that's a wrap. I'll keep my ears open for a veto overried on minimum wages, but otherwise, 2005 legislative updates are done.
UPDATE: Littler's summary is here.
AB 1093 allows for final "termination pay" to be made by direct deposit to a bank with a location in California, even if not headquartered here. It also clarifies some aspects of a computer programmer's exemption from overtime rules. Nothing too big here.
AB 1311 harmonizes service rules between DLSE hearings and civil suits. No biggie either.
SB 101 is discussed below--only put the last 4 digits of a social on a pay stub!
Sb 184 ups a talent agencies bond requirement to $50,000. Hmph.
The gridlock in Sacramento has succeeded in doing one thing: limiting the amount of topics for people like me to speak about to potential clients in the spring. There really isn't that much change in the law this year. I think that's a good thing--so we can let all of the rapid change in the past few years sink in.
2005 -- that's a wrap. I'll keep my ears open for a veto overried on minimum wages, but otherwise, 2005 legislative updates are done.
UPDATE: Littler's summary is here.
Legislative Update
AB 48 was VETOED.
AB 57 was VETOED.
AB 169 was VETOED.
AB 222 did not pass in committee.
AB 364 did not pass in committee.
AB 391 was VETOED.
AB 419 died in committee.
AB 474 did not pass in committee.
AB 510 did not pass in committee.
AB 553 did not pass in committee.
AB 640 did not pass in committee.
AB 673 died in committee.
AB 674 died in committee.
AB 775 died in Senate committee.
AB 822 died in committee.
AB 875 was VETOED.
AB 879 was VETOED.
AB 904 did not pass in committee.
AB 985 was VETOED.
AB 1012 died in committee.
AB 1093 passed and is law.
AB 1255 died in the hopper.
AB 1311 passed and is law.
AB 1626 has been transformed to a non-employment issue.
AB 1709 did not pass in committee.
SB 101 passed and is law.
SB 174 was VETOED.
SB 184 passed and is law.
SB 285 died in committee.
SB 862 died in commitee.
SB 940 was VETOED.
That's a wrap for 2005. Arnold terminated all but a few bills, which I will review above.
AB 57 was VETOED.
AB 169 was VETOED.
AB 222 did not pass in committee.
AB 364 did not pass in committee.
AB 391 was VETOED.
AB 419 died in committee.
AB 474 did not pass in committee.
AB 510 did not pass in committee.
AB 553 did not pass in committee.
AB 640 did not pass in committee.
AB 673 died in committee.
AB 674 died in committee.
AB 775 died in Senate committee.
AB 822 died in committee.
AB 875 was VETOED.
AB 879 was VETOED.
AB 904 did not pass in committee.
AB 985 was VETOED.
AB 1012 died in committee.
AB 1093 passed and is law.
AB 1255 died in the hopper.
AB 1311 passed and is law.
AB 1626 has been transformed to a non-employment issue.
AB 1709 did not pass in committee.
SB 101 passed and is law.
SB 174 was VETOED.
SB 184 passed and is law.
SB 285 died in committee.
SB 862 died in commitee.
SB 940 was VETOED.
That's a wrap for 2005. Arnold terminated all but a few bills, which I will review above.
Some Initial Thoughts On The Jury System
My experience as a juror was traumatic. Not because the seats in the jury box must have been designed by a cabal of chiropractors to maximize business; not because it took two weeks of my life; and not because most of the subject matter was drop-dead boring.
It was traumatic because during deliberations, roughly half of my fellow jurors simply ignored the evidence and the instructions. And it's not because I disagreed with the result that we arrived at. I simply disagreed with the disdainful, prejudicial manner that some of the other jurors had.
I pray that I never have my fate or the fate of someone I care about decided by such a group. I don't have any proof, for example, that some of those who refused to deliberate in good faith were simply trying to get home after two long weeks, but I got it straight from the horse's mouth from some of them that they simply "didn't like" the plaintiff or thought that because he didn't do absolutely everything perfectly that he deserved no reward--nothing that had anything to do with the law or the facts.
The case deserved a defense verdict, in my opinion, but not because the of the smear on the plaintiff by the defense, not because there are "frivolous" lawsuits out there and we should punish the system (there was enough juice in this one on day one to leave any notion of frivolous far behind), or anything else that was irrelevant to the events in question.
As a defense attorney, I have to feel emboldened. As a citizen, I have to be scared.
It was traumatic because during deliberations, roughly half of my fellow jurors simply ignored the evidence and the instructions. And it's not because I disagreed with the result that we arrived at. I simply disagreed with the disdainful, prejudicial manner that some of the other jurors had.
I pray that I never have my fate or the fate of someone I care about decided by such a group. I don't have any proof, for example, that some of those who refused to deliberate in good faith were simply trying to get home after two long weeks, but I got it straight from the horse's mouth from some of them that they simply "didn't like" the plaintiff or thought that because he didn't do absolutely everything perfectly that he deserved no reward--nothing that had anything to do with the law or the facts.
The case deserved a defense verdict, in my opinion, but not because the of the smear on the plaintiff by the defense, not because there are "frivolous" lawsuits out there and we should punish the system (there was enough juice in this one on day one to leave any notion of frivolous far behind), or anything else that was irrelevant to the events in question.
As a defense attorney, I have to feel emboldened. As a citizen, I have to be scared.
10/05/2005
A lawyer as a juror.
I have been on a jury for almost two weeks now. It's been an educational process that I will have a lot to say about once I'm relieved of my duty to hush up. I apologize for the lack of posts. As you can imagine, I've been occupied.
Editorial Policy on Comments
Comment spam has become overwhelming. I hate to do this, but I feel that I have to require that only those who create a blogger account can now post comments. If you have something important to say and don't feel like creating a blogger account, feel free to e-mail me.
9/21/2005
My excuse this week.
So, first I had a stomach ailment, then a nasssty headcold. Now, tomorrow, I have jury duty. What a week.
9/16/2005
SB 101 Analysis
Purpose:
SB 101 provides clean-up language to SB 1618, which was
passed last year. SB 1618 was enacted to help reduce the
likelihood of identity theft by requiring that by January
1, 2008, all employers must only use the last four digits
or less of an employee's social security number or
otherwise use an existing employee identification number
other than a social security number when providing
employees with an itemized statement of earnings.
Analysis:
Existing law requires an employer to furnish each employee
with an accurate itemized statement showing, among other
things, the name of the employee and his or her social
security number, except that, by January 1, 2008, existing
law requires the employer to include no more than the last
4 digits of the employee's social security number or an
existing employee identification number other than a social
security number on any check provided to an employee.
This Bill would clarify two issues raised by language in SB
1618. First, it strikes the word existing as it relates to
employee identification numbers. Assuming most employers
are not currently using alternative identification numbers
to pay their employees, they must be allowed to establish
new employee identification numbers to implement the
provisions of the bill.
SB 101 provides clean-up language to SB 1618, which was
passed last year. SB 1618 was enacted to help reduce the
likelihood of identity theft by requiring that by January
1, 2008, all employers must only use the last four digits
or less of an employee's social security number or
otherwise use an existing employee identification number
other than a social security number when providing
employees with an itemized statement of earnings.
Analysis:
Existing law requires an employer to furnish each employee
with an accurate itemized statement showing, among other
things, the name of the employee and his or her social
security number, except that, by January 1, 2008, existing
law requires the employer to include no more than the last
4 digits of the employee's social security number or an
existing employee identification number other than a social
security number on any check provided to an employee.
This Bill would clarify two issues raised by language in SB
1618. First, it strikes the word existing as it relates to
employee identification numbers. Assuming most employers
are not currently using alternative identification numbers
to pay their employees, they must be allowed to establish
new employee identification numbers to implement the
provisions of the bill.
Legislative Track Update
AB 48 is on the Governor's desk.
AB 640 is dead.
AB 875 is on the Governor's desk.
AB 879 is on the Governor's desk.
SB 101 is law; it amends LC 226 re: pay stubs.
(summary to follow)
SB 174 is on the Governor's desk.
SB 285 is dead.
SB 862 is dead.
SB 940 has been VETOED by the Governor (didn't pass with a 2/3ds majority in either house)
AB 640 is dead.
AB 875 is on the Governor's desk.
AB 879 is on the Governor's desk.
SB 101 is law; it amends LC 226 re: pay stubs.
(summary to follow)
SB 174 is on the Governor's desk.
SB 285 is dead.
SB 862 is dead.
SB 940 has been VETOED by the Governor (didn't pass with a 2/3ds majority in either house)
Hooters Employee Handbook
After drafting a number of employee handbooks, I (serioulsy) often wondered how I would tackle a client like hooters. Well, here's their handbook, so I guess I know now.
9/12/2005
Locker Suspended
The San Francisco Chronicle has this article:
Miles Locker has been suspended from his job in the Department of Industrial Relations for taking part in an informal "educational'' panel hosted by the San Francisco Bar Association's Barristers Club.
The panel's topic: "Meal and Rest Period Litigation.''
So, does this violate section 96(k)?
9/11/2005
Ross v. Ragingwire Telecommunications, Inc.
Guest Blogger: Steven M. Chanley
Ross v. Ragingwire Telecommunications, Inc.
The Court of Appeal (Third Appellate District) holds that an employer does not violate the FEHA’s prohibition against disability discrimination for firing an employee whose pre-employment screening tested positive due to physician-prescribed marijuana smoking. Although the drug use was lawful under California’s Compassionate Use Act of 1996, it remains unlawful under federal law. Nothing in the FEHA requires an employer to tolerate current illegal drug use. Moreover, the California statute “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions. The initiative says nothing about protecting the employment rights of those who do so.”
Comment: It is difficult not to be sympathetic to the plight of those who must rely legitimately on mind-altering drugs to mitigate their physical pain. However, it seems a non-starter to argue that the employment laws require an accommodation in the form of permitting illegal drug use.
The Court of Appeal (Third Appellate District) holds that an employer does not violate the FEHA’s prohibition against disability discrimination for firing an employee whose pre-employment screening tested positive due to physician-prescribed marijuana smoking. Although the drug use was lawful under California’s Compassionate Use Act of 1996, it remains unlawful under federal law. Nothing in the FEHA requires an employer to tolerate current illegal drug use. Moreover, the California statute “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions. The initiative says nothing about protecting the employment rights of those who do so.”
Comment: It is difficult not to be sympathetic to the plight of those who must rely legitimately on mind-altering drugs to mitigate their physical pain. However, it seems a non-starter to argue that the employment laws require an accommodation in the form of permitting illegal drug use.
9/07/2005
Chamber of Commerce v. Lockyer
Guest blogger: Steven M. Chanley
Chamber of Commerce v. Lockyer (9th Cir.)
The Ninth Circuit Court of Appeals struck down on NLRA preemption grounds a California statute that forbids a recipient of state funding from using any of those funds to promote or deter union organizing. Although somewhat facially neutral, the problem was that, in practice, the statute had a disparate impact on an employer’s right of free speech as to matters falling within the NLRA’s coverage. Accordingly, the statute was found to be preempted under both the Garmon and Machinists preemption doctrines.
Comment: Another example of the NLRA forbidding states from putting their thumb on one side of the scale or the other in matters of unionizing. Isn’t it best just to leave such matters to a well-informed employee electorate, whose personal rights are at stake anyway?
Chamber of Commerce v. Lockyer (9th Cir.)
The Ninth Circuit Court of Appeals struck down on NLRA preemption grounds a California statute that forbids a recipient of state funding from using any of those funds to promote or deter union organizing. Although somewhat facially neutral, the problem was that, in practice, the statute had a disparate impact on an employer’s right of free speech as to matters falling within the NLRA’s coverage. Accordingly, the statute was found to be preempted under both the Garmon and Machinists preemption doctrines.
Comment: Another example of the NLRA forbidding states from putting their thumb on one side of the scale or the other in matters of unionizing. Isn’t it best just to leave such matters to a well-informed employee electorate, whose personal rights are at stake anyway?
9/01/2005
Donald Green v. State of California
Guest Blogger: Steven M. Chanley
Donald Green v. State of California
Donald Green v. State of California
Court of Appeal in the Fourth District holds that it is the defendant’s burden to prove plaintiff’s incapacity as an affirmative defense and not plaintiff’s burden to prove his capacity to perform as part of his prima facie case of disability discrimination under the FEHA. The holding specifically disapproves the Judicial Council jury instructions on the issue, as well as Brundage v. Hahn, both of which place the burden on the plaintiff as part of his prima facie case.
Comment: This is another unfortunate case where California law is made to deviate from federal ADA precedent in a way that makes no sense. Being a qualified individual with a disability should be considered a baseline standing requirement, properly placing it within the claimant’s prima facie case. This one is destined for depublication.
Comment: This is another unfortunate case where California law is made to deviate from federal ADA precedent in a way that makes no sense. Being a qualified individual with a disability should be considered a baseline standing requirement, properly placing it within the claimant’s prima facie case. This one is destined for depublication.
8/22/2005
Leegin Creative Leather Products v. Diaz
Guest Blogger: Steven M. Chanley
Leegin Creative Leather Products v. Diaz
Leegin Creative Leather Products v. Diaz
The employer sued an employee for fraud after a sub rosa investigation captured evidence that the employee displayed physical capabilities that were inconsistent with her temporary total disability claim. The civil suit was filed while the application was still pending before the WCAB and before there had been any administrative finding of fraud. The trial court granted the employee’s anti-SLAPP motion to dismiss.
The Court of Appeal affirmed. The employer did not contest that the employee’s application to the WCAB implicated her right to petition the government for the redress of grievances, and the Court of Appeal determined that, for two reasons, the employer’s Complaint failed to make a prima facie showing sufficient to sustain a judgment in its favor. First, the employer’s forwarding the employee’s application for benefits to its insurer was not evidence of justifiable reliance, according to the Court, because that act was non-discretionary and compelled by law. Second, the Court found that the employer could not show any resulting loss, because any eventual finding of fraud by the WCAB would preclude an award of benefits and an increase in insurance premiums as a matter of law. The Court of Appeal also based its holding on public policy grounds: “Permitting an employer to bring a civil action for fraud against an employee while the workers’ compensation proceeding is pending could have a chilling effect on an employee’s exercise of the right to file a workers’ compensation claim.”
Comment: This is clearly the case of a company’s frustration over a frivolous comp claim trumping its better judgment. As the Court of Appeal points out, adequate remedies exist at the administrative level (where the insurer bears the attorneys’ costs) for dealing with applicant fraud. I’ll bet the civil suit was probably several times costlier than whatever premium increase the employer would feel as a result of the comp claim.
The Court of Appeal affirmed. The employer did not contest that the employee’s application to the WCAB implicated her right to petition the government for the redress of grievances, and the Court of Appeal determined that, for two reasons, the employer’s Complaint failed to make a prima facie showing sufficient to sustain a judgment in its favor. First, the employer’s forwarding the employee’s application for benefits to its insurer was not evidence of justifiable reliance, according to the Court, because that act was non-discretionary and compelled by law. Second, the Court found that the employer could not show any resulting loss, because any eventual finding of fraud by the WCAB would preclude an award of benefits and an increase in insurance premiums as a matter of law. The Court of Appeal also based its holding on public policy grounds: “Permitting an employer to bring a civil action for fraud against an employee while the workers’ compensation proceeding is pending could have a chilling effect on an employee’s exercise of the right to file a workers’ compensation claim.”
Comment: This is clearly the case of a company’s frustration over a frivolous comp claim trumping its better judgment. As the Court of Appeal points out, adequate remedies exist at the administrative level (where the insurer bears the attorneys’ costs) for dealing with applicant fraud. I’ll bet the civil suit was probably several times costlier than whatever premium increase the employer would feel as a result of the comp claim.
