Understanding California Employment Law Changes For 2019

Employers and employees are bound together in a relationship defined by contract, convention and the law. California employment laws are constantly being reviewed and amended to balance the competing interests of workers and their employers. Here are a few of the changes that employees and employers should be aware of going forward:

Sexual Harassment, Senate Bill 1300

This bill makes it clear that employers may be held responsible for acts of harassment committed by nonemployees if the employer or certain other parties knew or should have known about the conduct and didn’t take immediate and appropriate corrective action. The bill, under certain exceptions, would prohibit an employer from requiring an employee(s) to release their claims under FEHA or stop them from disclosing unlawful acts, including but not limited to sexual harassment, in their workplace, in exchange for continued employment, or in exchange for a bonus or raise.

Another important aspect of SB 1300 is that it limits the situations in which an employer could collect attorney’s fees and costs from a worker who made unsuccessful claims of sexual harassment. Such an award would only be available in cases where the claims were frivolous, unreasonable or groundless when they were brought, or when a plaintiff continued to litigate after the claims lost their merit.

Lactation Accommodation, Assembly Bill 1976

Under this law, employers are required to make reasonable efforts to provide employees with a room or other location expressly for lactation purposes. The room cannot be a bathroom. Employers must be able to show that such an accommodation would be an undue hardship to be allowed to use a bathroom as the designated location, though they would still have to provide a space other than a toilet stall for employees to express milk.

Salary History Inquiries, Assembly Bill 2282

This bill added definitions for the terms, pay scale, applicant and reasonable request to existing law. The new law requires employers to provide someone who has completed an interview with a salary or hourly wage range for the position. Employers continue to be barred from relying on or seeking salary history information from an applicant. The new law does allow employers to ask applicants about their expected salary.

Defamation, Libel and Sexual Harassers, Assembly Bill 2770

This bill protects sexual harassment victims from being sued for defamation by their alleged harassers. It also protects employers from similar suits by harassing employees, thus allowing them to tell other potential employers of the sexual harassment accusations without fear of a defamation lawsuit.

Paid Family Leave Update, Senate Bill 1123

Looking farther ahead, SB 1123 will expand the Paid Family Leave wage replacement program starting in 2021. Employees will have access to the program to handle situations arising from the covered active duty status of their spouses, domestic partners, children or parents.

New Sexual Harassment Prevention Training, Senate Bill 1343

Starting January 1, 2020, all California employers with 5 or more employees must provide supervisory employees with at least 2 hours of sexual harassment training. They would also be required to provide nonsupervisory employees with at least 1 hour of sexual harassment training. The training would be classroom or other effective interactive training and education. Employers would also have to provide sexual harassment training and education to each employee at least once every two years going forward.

Confidential Settlement Agreements, Senate Bill 820

The use of confidentiality clauses in settlement agreements is restricted in this bill, starting January 1, 2019. The bill applies to settlement agreements reached in civil or administrative proceedings based on the following violations:

  • Sexual assault
  • Sexual harassment
  • Workplace harassment or sex discrimination
  • The failure to prevent workplace harassment or sex discrimination
  • Retaliation against a person for reporting harassment or sex discrimination

Courts will no longer be allowed to enter, by stipulation or otherwise, an order that prevents parties from disclosing factual information involved in the settlement. The bill specifically allows for confidentiality orders meant to protect the identity of the victim. It also allows provisions that prevent the parties from disclosing the amount paid in settling the claim. The bill declares these nondisclosure provisions related to factual information of the claim are void as a matter of law and against public policy.

Equality and Corporate Boards of Directors, Senate Bill 826

This bill requires all public companies with the principal executive offices in California to have a minimum of 1 female on its board of directors by the end of 2019. By the end of 2021, companies will be required to have a minimum of 2 female directors if the company has 5 directors, or 3 female directors if the board consists of 6 or more directors. The bill further authorized the Secretary of State to impose fines against companies that do not meet the requirements.

Addressing Sexual Harassment Claims, Senate Bill 224

This bill expands the group of people who can be held liable for sexual harassment to include investors, elected officials, lobbyists, directors and producers. In general, it allows for sexual harassment liability when the victim can show that the defendant held himself or herself out as someone who can help them establish a business, service or professional relationship with the harasser or a 3rd party. It also takes away the old requirement that sexual harassment victims must prove that they were unable to easily terminate the relationship.

Additionally, SB 224 makes the Department of Fair Employment and Housing responsible for enforcing sexual harassment claims. It also makes it illegal for someone to incite or help someone else denial the rights of persons related to sexual harassment actions.

These are just a few of the changes enacted by the California Legislature that will affect employers and employees in 2019 and beyond.

Sources: California Employment Law Report; HR Watchdog; CaliforniaBreastfeeding.org; California Legislative Information

TEACHER WHO DID PORN LOSES EMPLOYMENT APPEAL

Educators walk a fine line between their personal and private lives. Teachers’ extracurricular activities can have a direct impact on their profession, especially when administrators disapprove of previous job choices.

One California teacher is still struggling to regain her place in the classroom after she was fired for appearing in pornography in her past. The 32-year-old turned to the legal system in order to fight her termination from Haydock Intermediate School in Oxnard.

The woman lost her appeal to return to the classroom after a recent decision by a panel of Oxnard judges. Those judges concluded that the woman’s previous career in pornography would have a negative effect on her ability to teach. The woman had apparently talked about being a teacher during the introduction for one of the sex tapes, which the judges found particularly distasteful.

The ruling follows an October argument from district representatives that concluded that the woman was rendered ineffective as soon as her students found the videos. Students began referring to the woman by her pornographic stage name, according to administrators, which was distracting.

When the videos surfaced, students etched profanity on the woman’s classroom windows. Teachers had showed the videos to administrators using their smartphones, according to media reports.

Still, the woman did not participate in pornographic ventures during her teaching tenure in Oxnard. The woman only filmed the material during a short period in 2005 and 2006 when she ran into financial troubles, according to testimony.

It is not clear whether the woman will seek a future appeal in this case.

The woman in this case was gainfully employed in a sanctioned, if somewhat controversial, industry in her past. The woman was deemed ineffective as both a teacher and a role model simply because of her earlier professional decisions. Her lawyer believes she is a representation of many people who have done something that was not illegal in the past.

Source: CBS News, “Stacie Halas, fired Calif. teacher with porn past, loses appeal,” Jan. 16, 2013

WOMAN SUES TO EXPOSE FAMILY COURT SHORTCOMINGS

A mediator for Family Court Services has decided to sue the Nevada County Superior Court, alleging that she suffered from wrongful termination when she blew the whistle on unethical practices within the state’s legal administration. The woman is seeking compensation for lost wages and emotional distress, according to legal documents.

Still, the woman says the suit is not only for her benefit. She claims that state administrators blatantly ignored legal requirements when handling custody cases, putting both parents and children in dangerous situations. The woman says that when she brought the topic up to her supervisors, they began retaliating against her.

The woman hopes that her case can bring to light the convoluted system that allows state courts to regulate their own behavior. When the woman approached the Administrative Office of the Courts, she was turned away because leaders refused to hear her claim. According to the AOC, each court is supposed to police itself.

The woman says that she saw workers fail to properly review criminal and civil information in connection with family services actions. They also failed to implement the standard domestic violence protocols, she says, which endangered countless children and adults. On several occasions, the woman claims that she heard a judge tell parents that their children might commit suicide if they could not reach a mediated custody agreement.

Legal documents show that the woman was fired from her job in late December 2010. Her employment was terminated because she failed to abide by the department’s code of ethics, according to statements made by administrators. She also allegedly released confidential information and acted in an unprofessional manner.

The case was approved to proceed to trial in June 2012. Advocates for family services and other nonprofit organizations are rallying behind the woman in an attempt to expose what they see as marked injustice in the Californian legal system.

As citizens of California, we trust that our courts will operate to the same ethical standards that they themselves expect in the citizens they judge. We also expect that whistleblowers will be protected from the retaliation of their employers. Blowing the whistle on injustices protects the rest of the population from corruption and fraud- a practice that should be rewarded, not punished.

Source: Yubanet.com, “Gallup’s wrongful termination case exposes court’s lack of compliance with state laws,” Emily Gallup, Sept. 17, 2012.

INDIAN WELLS OFFICIALS PROTEST WRONGFUL FIRING RESULT

The city of Indian Wells is in the process of challenging a wrongful terminationsettlement that was made by First Foundation Bank to a former employee. The city says that the settlement was too small, considering that the man could have received more than $5 million in potential damages, while the bank only paid him about $400,000. The banker had not specified a sought amount of damages in connection with the suit.

City representatives say they have filed legal paperwork protesting the unusually small settlement.

The 50-year-old banker was reportedly fired from his position at First Foundation Bank in September 2011, when he brought up questions about a city manager’s pension during a city council meeting. The government official brought the man’s statements to the attention of the bank, and they decided to terminate his employment.

Not only was the bank named in the suit, but city officials are also being sued in connection with the wrongful firing. The banker is alleging that the city violated the man’s constitutional rights by engaging in political retaliation. He is also charging officials with conspiracy and civil rights violations.

Attorneys in the case say the city is acting to lower its own potential liability, instead of attempting to seek justice in connection with the wrongful termination. If the bank is forced to pay a higher settlement, the liability assigned to the city becomes lower, and so Indian Wells will not have to pay as much.

The city maintains insurance for such situations, but Indian Wells could still end up paying as much as $50,000 in self-insured retention in connection with the claim. Further hearings are scheduled for Sept. 19, according to court documents.

The banker in this case was the alleged victim of wrongful termination because he decided to get involved with his local government. According to claims, representatives of the city pressured his employer to fire him, which leaves both entities potentially culpable.

Source: MyDesert.com, “Indian Wells fights wrongful firing suit deal,” Nicole C. Brambila, Sept. 10, 2012

WOMAN FILES LAWSUIT AGAINST CALIFORNIA TRUCKING COMPANY

A woman who had been a dispatcher at a freight company has filed a sexual harassment lawsuit against her former employer. In her lawsuit, the woman alleges that she was encouraged to flirt with customers, send suggestive electronic messages and perform other undignified acts to build business contacts. She had previously been employed by California Refrigerated Express, Inc., according to the complaint.

In addition, the woman alleges that her supervisors retaliated against her when she refused to participate in such activities, giving big business accounts to other women. Those women were reportedly encouraged to have ‘sexual activities’ with customers in order to maintain business relationships for the company. It is not clear whether other female employees have filed similar suits, but they may be forthcoming as more information is revealed.

Although the firm soundly rejects the woman’s claim, the former employee is seeking financial compensation for unfair business practices and a hostile work environment. The woman also alleges that labor code was violated when she was fired for refusing to engage in sexual conduct with customers.

The woman is seeking nearly $70,000 in unpaid overtime, contending that she was required to be on-call during the weekend hours. The woman contends that she was not paid for that time, even though she had set it aside to serve the company’s interests.

Additionally, legal documents indicate that the operator of the business has had her carrier license revoked involuntarily on numerous occasions. It is not clear exactly why those punishments were levied.

Source: Land Line, “Lawsuit alleges company president encouraged flirting, sex with customers,” Clarissa Kell-Holland, Aug. 22, 2012

RESERVE OFFICER SAYS HE WAS FIRED FOR BLOWING WHISTLE

A former law enforcement officer in Contra Costa County says his employment has been terminated because he stepped forward to protest unethical police department policies. The man, who blew the whistle on sheriff’s deputies who were conducting “dirty” DUI arrests, was fired earlier this month after 19 years as a reserve officer in the local sheriff’s unit.

A representative from the department said the matter was an internal affair, and reserve officers are at-will employees. Those workers may be dismissed without cause, according to police department officials, who say they will not discuss the case.

The man alleges that he was ostracized by his fellow workers after he cooperated with internal affairs investigators in 2011. He played a role in the indictment of a fellow officer who had been arresting people based on personal vendettas, not actual drunk driving charges. The man said his statement in the case was frowned upon, and he was seen as a troublemaker within the department for breaking the “police code of silence.”

The officer who had been charged with the misdeeds has since pleaded guilty to the charges, and he awaits sentencing on charges of conspiracy and additional drug charges.

According to department records, the whistleblower is a Navy veteran with a record of outstanding performance. As a reserve sheriff’s volunteer, he receives about $20,000 in per diem payment each year, and he is covered under the department’s benefits plan. The man joined the force after a career as a successful executive. He had developed colon cancer at that time, and he wanted to give back to his community.

The man has continually received the highest marks with regards to his job performance, which makes his termination even more suspect. It is not clear whether the man has formally filed a suit in connection with the termination of his employment. However, it appears that he would stand a good chance of at least regaining his employment position if he pursued civil action against the department.

Source: The San Francisco Chronicle, “Whistle-blower let go as reserve deputy,” Justin Berton, Aug. 17, 2012

MUSLIM WOMAN SUES DISNEY OVER HIJAB

A Muslim woman who formerly worked for Disney is alleging that the company wrongfully terminated her employment agreement because of her religious beliefs and her ethnicity. The 28-year-old woman has filed a federal lawsuit because of the reported discrimination and harassment.

The woman says she was harassed and called “terrorist” because of her request to wear the traditional Islamic headscarf known as a hijab. Both supervisors and co-workers harassed her because of her race and religion, she says. The woman had been hired in 2008 to work at the Storytellers Café in the Grand Californian Hotel, according to company records. The woman was first involved in the dispute when she requested permission to wear her hijab in 2010.

When the woman approached her supervisors about wearing the hijab, they said she would have to change job positions, working in a back kitchen or other place where she could not be seen. These demands even came after the woman asked to wear a hijab that matched the uniform provided by Disney.

The woman was fired after she refused to wear a large fedora over her hijab. That happened in 2010.

Disney representatives contend that they gave the woman ample opportunities to work in positions where her hijab would be accommodated. The woman failed to respond to those opportunities, say administrators, which resulted in her firing. They say that Disney adequately accommodates people from all religious traditions.

The woman’s suit includes charges that Disney violated multiple legislative statutes, including the California Fair Employment and Housing Act. She also contends that the company failed to prevent discrimination against her, and her firing was unlawful according to public policy provisions.

Media reports have not yet said how much money the woman is seeking in connection with the suit. She will ostensibly be suing for lost wages, and she might also request to be reinstated into her former job position. The case has not yet received an initial court hearing.

Source: KNX1070 radio, “Ex-Disney worker sues in fight over Muslim head scarf,” staff reports, Aug. 13, 2012

KLEINER SEEKS VENUE CHANGE FOR SEX CASE

A venture-capital firm from Silicon Valley has appealed a decision from a California judge that would have permitted a sexual harassment case to remain in the courts instead of moving to an arbitration proceeding. The firm, Kleiner Perkins AsbillCaufield & Byers, is a technology group based in the high-tech area in California.

Kleiner is accused of systematic sexual discrimination by refusing to promote women and generally ignoring sexual harassment complaints. The woman who is bringing the suit had worked as a partner at the venture-capital fund. She contends that the firm did not have an adequate reporting system for sexual harassment complaints. The company argues that the woman never voiced her unhappiness with the environment at the firm, instead choosing to keep her complaints to herself.

Kleiner also argues that the woman signed arbitration agreements that would require her to abandon the court proceedings. The woman’s attorney successfully proved that arbitration was only mandatory if the woman was involved in a suit related to an individual fund. Instead, she chose to sue the firm as a whole, which makes a court proceeding more appropriate.

Kleiner representatives expressed dismay at the judge’s decision, saying that arbitration would be an easier and more efficient way to reach a decision in the case. Arbitration is a process that is much like mediation, as it requires that both parties work together to come up with a solution. Arbitration proceedings often negate many of the legal rights of the plaintiff, however, which is why the woman is seeking to keep the case in the courts.

It is unclear how long the appeals process will take, though documents often take as long as a month to process, according to representatives from the state’s legal resources.

Source: The San Jose Mercury News, “Kleiner Perkins Asbillappeals decision for trial in sexual harassment case,” Sarah McBride, Aug. 7, 2012

DOMINO’S CORPORATE FACES SEXUAL HARASSMENT SUIT

An appellate court in California has ruled that Domino’s Pizza can be held responsible as a corporation for sexual harassment perpetuated by franchise owners. A lower court had previously held that the food service giant could not be sued in relation to a recent case.

A Domino’s manager had allegedly sexually harassed a 16-year-old during her time as an employee. She said she was harassed and assaulted, and she filed a complaint under the Fair Employment and Housing Act. She has sued the franchise for failing to prevent discrimination, retaliation for exercise of rights, battery, wrongful termination, and assault, according to court documents.

The appellate court ruled that since franchise owners report directly to their corporate overseers, they are necessarily connected in an agency relationship. That means that the corporation, in addition to protecting its trademark and branding measures, should also be held responsible in actions of the franchise. Even if the franchisee is declared as an independent entity, the strength of the owner’s relationship with the corporation can cause a transfer of liability.

A review of the franchise agreement shows that Domino’s has significant control over qualifications for employees and standards for their conduct. If franchises violate the provisions of their corporate agreement, they can be terminated from the franchise program. In addition, the corporate entity enforces stringent rules regarding employee activities such as timecard submission, appearance and demeanor.

The appellate court has thus decided that the larger entity, Domino’s, is responsible for the conduct of its franchisees because of its intense involvement in everyday operations at retail locations throughout the United States. That means that sexual harassment lawsuits, such as the one brought by the young woman, have access to significantly more resources for punitive damages. Clients are able to sue the parent company, not just the independent franchise.

This decision opens up franchisees of many larger corporations to larger liability in sexual harassment, retaliation and wrongful termination suits. It is likely to have a lasting impact on the legal landscape in employment law for years to come.

Source: Blue Mau Mau, “Dominos liable in franchisee sexual harassment case,” Janet Sparks, July 17, 2012

SOLANO COUNTY DISABILITY ADVOCATES VIOLATE EEOC HIRING RULES

An agency that provides services to disabled individuals has gotten itself in trouble by violating equal opportunity employment laws. The group, based out of Solano County, was accused of discrimination by a job applicant whose employment offer was rescinded after agency leaders found out that her hand was partially paralyzed.

The Equal Employment Opportunity Commission (EEOC) found out that the agency had called the woman’s disability a “liability,” and the group now may be forced to pay up in a discrimination suit.

The woman had applied for a job as a teacher for developmentally disabled adults. After she was presented with a job offer, she was sent for a pre-employment physical examination. She passed all requisite tests and informed the physician that she had partial paralysis in her hand, if an effort to make sure that the doctor had complete and accurate medical records.

Shortly thereafter, the woman was notified that she was no longer eligible for the position, even though the organization’s own physician had cleared her for work. Agency leaders reportedly told the woman that her injury was a liability for the group, and they did not want her to cause further harm to her hand by working as a teacher.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees because of physical disabilities. Furthermore, employers must treat job applicants fairly under the same provisions.

The EEOC had initially attempted to reach a financial agreement with the group, but mediation was unsuccessful. As a result, the commission has filed a suit seeking back pay, lost wages, compensatory and punitive damages for the disabled woman. EEOC administrators say the agency’s actions were inexcusable. The woman’s disability did not impact her performance, and there was no reason to rescind the job offer.

Internet sources reveal that the group, Pace Solano, assists nearly 400 developmentally disabled adults at seven locations throughout the county. The group provides training, transportation and care for those individuals, and it employs about 200 workers.

Source: The Reporter, “Solano County disability services provider faces suit,” Catherine Bowen, July 12, 2012