Let’s face it. Some administrative procedure requirements in employment law are like locking a door with a Cheeto – pretty pointless. For example, California employees wanting to sue their employers for harassment or discrimination pursuant to the Fair Employment and Housing Act (“FEHA”) must first obtain a “right to sue letter.” Conveniently they can get one automatically by filing a complaint form with the Department of Fair Employment and Housing (“DFEH”). There is no close scrutiny of the claims, or any scrutiny for that matter, before a right to sue letter is issued by the DFEH.
California Governor Signs Bill Exempting Certain Construction Employers from PAGA Penalties
California’s Assembly Bill 1654 (“AB 1654”) provides a PAGA carve-out for unionized construction workers covered by an applicable collective bargaining agreement (“CBA”). For Now, AB 1654 is limited to the unionized construction industry, which makes up a small section of California’ workforce. However, its purpose in providing relief from PAGA may serve as a prequel to further relief from PAGA’s oppressive scope.
The “Me Too” Movement’s Influence on Legislative Action
The “Me Too” movement burst onto the social awareness scene in late 2017. Encouraged to speak out to raise awareness of the prevalence of sexual assault and harassment, particularly in the workplace, many victims took to social media as their platform. Among the advocates unveiling their own experiences with sexual violence in the workplace were well-known male and female celebrities, athletes, and politicians, including Ellen DeGeneres, Gabby Douglas, Jennifer Lawrence, James Van Der Beek, and Elizabeth Warren. In response, lawmakers began taking remedial measures in an attempt to rectify past injustices and deter future occurrences. As California has provided the backdrop for many of these allegations, it is fitting that California enforce legislature to inhibit such occurrences.
After countless years of victimization by the system set up to privately address discrimination and sexual harassment/assault in the workplace, new Washington State laws took effect in June, 2018 that specifically remove various barriers for employees trying to bring discrimination and harassment lawsuits against employers. In reaction to and in tune with the #MeToo movement, a movement empowering victim of sexual harassment and assault to speak up against their abusers, the motivation for these laws was to empower victims of discrimination and sexual harassment in the workplace, by ensuring they are heard, believed, and have an avenue for remediation.
In California, it is well established if an employee is within the course and scope of his employment at the time of an accident, vicarious liability extends to an employer. However, CACI jury instruction 3725, known as the “vehicle use exception” or “the going and coming rule” states “an employee is not acting within the scope of employment while traveling to and from the workplace.” This year, the Second Appellate Court for the State of California decided Newland v. County of Los Angeles and provided further insight on how this exception will be interpreted and applied.
California is a diverse state with a wide array of spoken languages. The California Court of Appeal, Second Appellate District, recently held a corporate handbook with an arbitration agreement was entirely unenforceable due to its inconsistent translation. (Carlos Juarez v. Wash Depot Holdings, Inc. (Ct. App. 2018) 2d Civil No. B282667.)
Can a potential employer be held liable under the California Fair Employment and Housing Act (FEHA), Government Code section 12900, et seq., for thwarting a pregnant woman from applying for a job by falsely telling her no position is available? In the recent opinion in Abed, the California Court of Appeal, First District, held that it can. Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726.
In a recent Court ruling, California showed its continued support for workers. Specifically, the Court of Appeals reinforced California’s preference against any contract, which would restrain the ability to work, and clarified not only are non-compete clauses void, but other contracts of similar nature may also be void. Golden v. California Emergency Physicians Med. Grp., 782 F.3d 1083 (9th Cir. 2015).
A new California law, which provides protection for sexual harassment complaints is coming to a workplace near you. The law, Assembly Bill 2770, goes into effect January 1, 2019, and creates a new category of privilege for complaints of sexual harassment, as well as communications by an employer regarding those complaints. In addition, the law carves out a privilege for answers to the question: “Would you rehire an employee?” This last type of communication includes statements in which a decision not to rehire is based on an employer’s determination a former employee was engaged in sexual harassment.
In a surprising decision for employers in the State of California, the California Supreme Court in Troester, held the de minimis doctrine, which was adopted under the Federal Fair Labor Standards Act (FLSA) did not apply to California employers. Troester v. Starbucks 2018 WL 3582702 (July 26, 2018.)
In many workplace harassment cases, it is often difficult to gather evidence or produce witnesses to testify regarding instances of harassment for a number of reasons. Often, the harassing conduct may take place in private and is undocumented. Where the offending conduct is witnessed by others, social pressure and fear of retaliation for testifying against an employer exacerbate the challenges in obtaining evidence. The difficulty in obtaining evidence can make it challenging for a plaintiff to prove the harassing conduct was “severe or pervasive.” In upholding a $500,000 jury verdict, the Fourth District Court of Appeals (“Fourth DCA”) recently provided further guidance on what evidence is sufficient to constitute severe and pervasive and actionable harassing conduct.[i]
Overseeing employee medical leave of absence can be a headache for employers. Employers are not only required to comply with mandated leave requirements under the Family Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”), they must also consider medical leave process in the context of disability discrimination and their obligation to provide disabled employees with reasonable accommodation.
Wordless communication through emojis has become increasingly popular since the widespread use of smartphones. Emojis are pictographs used to express emotion, gestures, and objects. A study conducted in 2015 by the emotional marketing platform, Emogi, found 92 percent of the online population used emojis. The report found the number one reason individuals use emojis was to accurately express their thoughts and for others to easily understand them.
To employers’ delight, and disappointment to class action plaintiff attorneys, the United States Supreme Court finally issued its decision on the hotly debated issue of whether or not a class action waiver contained in an Arbitration Agreement violates the National Labor Relations Act (NLRA). Short answer: it does not!
When multiple employees sue an employer in a single lawsuit based on a common pattern of discrimination, employers have historically relied on misjoinder of parties as a defense on demurrer. The recent decision by the Fourth Appellate District, Division Two, in Rosa Jensen v. The Home Depot, Inc., et al., 2018 WL 2441175, may force employers to change their defense tactics, at least at the early pleading stage.