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

SEXUAL HARASSMENT IN THE WORKPLACE AFFECTS CALIFORNIA TEACHER

A lesbian teacher in California is suing her former school district, alleging that she was subject to discrimination and lost her job because of her sexual orientation. That woman, age 42, said she suffered from a hostile work environment at the school where she taught, which she attributes entirely to her sexual orientation. She was informed that her teaching contract would not be renewed after a discussion with administrators in February 2013.

Official reports show that the woman had received positive performance reviews during her time at Sultana High School, where she taught English. In fact, administrators said that her performance during her first year had been “great.” The woman may have made some enemies within the administration, however, when she began to stand up for lesbian, gay, bisexual and transgender students who were being subject to inappropriate actions and comments at the school. The woman served as an adviser for the school’s gay-straight alliance, and she fielded complaints from students who said they were bullied and bothered by teachers and higher-ups at the institution.

The woman, who is still unemployed, says she simply wants her job back. Leaders within the school district say, however, that the woman was appropriately terminated because she had probationary status; the woman was working toward tenure, but she was a probationary employee for her first two years at the school. The woman says that she has suffered unfairly because she was brave enough to blow the whistle on the school’s anti-gay culture.

No matter your sexual orientation, it is possible for a hostile work environment to persist because of comments of a sexual nature and other violations. This teacher and her students stood up for their rights, and it appears that she lost her job because of her inflammatory position. Still, as a qualified teacher, she should not have been so easily dismissed. Entities such as this school district must be held accountable for complying with employment law that protects minorities and those in other special categories.

Source: The Bay Area Reporter, “Lesbian teacher fights for her job back” Matthew S. Bajko, May. 01, 2014

SAN DIEGO SETTLES SEXUAL HARASSMENT IN THE WORKPLACE CLAIM

The city of San Diego, California, is slated to drop $250,000 to settle an employment lawsuit filed against the former mayor. Mayor Bob Filner was accused of sexual harassment in the workplace, according to the suit, which was filed by his former communications director. Additional harassment suits are also being filed by two other women, though a total of 18 female employees stepped forward with complaints against Filner. He resigned his post amid the allegations in late August.

The 71-year-old ex-mayor will have his legal fees paid by the city. Further, he will not be held personally responsible for the financial compensation due to the plaintiff; California law requires cities to pay victims of sexual harassment by a supervisor. The plaintiff in this case sought the aforementioned amount because she suffered ongoing conduct for six months, according to news reports. The woman accused Filner of a variety of harassment allegations, including inappropriate comments and unwelcome physical contact.

Experts say the city settled the case in order to avoid continued, expensive litigation. Officials estimate that legal fees in the case could easily have eclipsed the $250,000 handed down by the city. Even though the former mayor will not pay for the plaintiff’s settlement, he is facing some serious consequences; Filner was sentenced to three months of home confinement after pleading guilty to criminal charges of false imprisonment and battery.

Victims of sexual harassment in the workplace may be compensated for their discomfort and emotional distress. These victims deserve to be repaid for the trials they have endured in the workplace. California employment attorneys may be able to help such workers learn more about their legal rights, allowing them to make informed decisions about their own harassment cases.

Source: The Huffington Post, “San Diego To Pay $250,000 To Settle Bob Filner Lawsuit” Julie Watson, Feb. 10, 2014

HOSTILE WORK ENVIRONMENT CAN OCCUR IN GOVERNMENT

Scores of California employees suffer from sexual harassment in their workplaces. Sexual harassment in the workplace is a serious legal problem. Workers should not have to tolerate inappropriate actions and comments from others on their job sites. Even government administrators can be accused of sexual harassment.

An administrator in nearby Hatch, New Mexico, is accused of sexual harassment and fraud. The clerk administrator was put on paid leave after the allegations came to light. He will likely not return to work until an investigation into the matter is complete.

The man is accused of harassing an employee at the Motor Vehicle Department. The woman was hired by the defendant to manage the office. That woman has also been placed on paid leave. The Hatch MVD office is now unable to perform certain inspections because the woman has been temporarily removed from work. A complaint was filed with the Equal Employment Opportunity Commission. A lawsuit has not formally been filed in the case. The EEOC has not commented, as it only addresses claims after lawsuits have been filed.

News reports show that very little information is available about the alleged harassment. Local police conducted an investigation. Their report has not been made public. New Mexico State Police are also helping with the investigation.

This is not the first time that the administrator has been in legal hot water. He was censured in 2007 by county leaders after he misused employee time in violation of employment law. He also was accused of spending county money on campaign materials.

Employees deserve to work in a safe environment for their mental and physical health. People who perpetrate sexual harassment are creating a hostile work environment. Those offenders should be punished.

Source: LaCruces Sun-News, “Hatch administrator placed on leave due to sexual harassment, fraud report” James Staley, Jan. 27, 2014

SAN DIEGO MAYOR ACCUSED OF HARASSMENT BY THIRD WOMAN

A third woman has come forward with allegations of sexual harassment in the workplace after she said the mayor of San Diego attempted to kiss her. The woman alleges the mayor took the inappropriate actions while he was a congressman. The alleged misdeeds occurred during a meeting at a restaurant. Even though the man said he intends to fight against the sexual harassment charges, he did indicate he needed help to improve his behavioral issues.

The woman was lobbying for her nonprofit organization during the April 2009 meeting at the Marie Callender’s Restaurant & Bakery across the street from the man’s offices. The woman’s project, known as America’s Angel Campaign, works to prevent domestic violence among military and other families. Documents allege the man moved over to the woman’s side of the booth, pushing her against the wall and embracing her. He then attempted to kiss her several times before he was interrupted by a ringing cell phone.

Even though she was uncomfortable with the man’s actions, the woman did not report the incident because she was afraid the nonprofit would suffer if she complained. Instead, she told her close friends about the incident. Then, when she heard other victims had come forward about the man, she broke the news over a victim’s hotline.

At least two other women have been vocal about their experiences with the mayor, including a woman who accuses him of patting her rear end during a fundraising event. That woman demanded, but never received, an apology from the politician. She, too, failed to report the incident because she feared backlash on her budding political career.

If you have been sexually harassed at work, you should know that you have the right to a safe, healthy workplace without the fear of unwanted advances. Reporting such incidents is not only ethical, but it is responsible. Even if you are afraid of retaliation, your attorney can help you stand strong. Consider help from a qualified employment lawyer to help you win your case against your unfair employer.

Source: 
www.cnn.com, “3rd woman accuses San Diego mayor of sexual harassment” Michael Martinez & Chuck Johnston, Jul. 24, 2013

TRANSIT WORKER SUES FOR WRONGFUL TERMINATION

A man who was hired by Pierce Transit in California’s neighboring Washington is seeking financial compensation through a wrongful termination suit. The man is alleging that he was wrongfully fired after the company learned of his previous criminal record, which included a series of break-ins and license revocations dating back more than a decade.

The man had been a contracts manager for the state of Washington’s Liquor Control Board before he was hired by the transit company. He had been working for Pierce for about a month when he was sent home on administrative leave after the company uncovered information about his criminal record. Administrators said they had conducted background checks prior to hiring the man, but standard reviews did not reveal his prior convictions.

Attorneys for the man say that he has overcome his criminal proclivities, many of which involved drug and alcohol-related activities. The company had already vetted the man before hiring him, so officials should not have been permitted to terminate his employment. The man did not falsify any information on his employment application, but company administrators still contend that his criminal record could compromise his ability to perform his job duties in the finance division.

The man has been unemployed since he was fired because his previous job had already been filled. He was hired by Pierce Transit in May 2012. Attorneys for the man say he was the victim of unfair hiring practices; he should have been given the opportunity to redeem himself despite his previous indiscretions.

The company could be required to reinstate the man into his previous position if the civil suit is successful. Alternatively, a judge or jury could compel the company to pay the plaintiff for lost income, wages and benefits. It is not clear how much money the man is seeking in connection with the civil suit. The suit was filed in Pierce County Superior Court in late March, according to media reports.

Source: The News Tribune, “Fired former worker sues Pierce Transit,” Adam Lynn, April 1, 2013

FILM COMMISSION UNDER FIRE FOR WHISTLEBLOWER TERMINATION

A Film Commission worker in San Francisco, California, may seek legal recourse after she was wrongfully terminated. The woman, who was a permit issuer for the government group, said she was discriminated against as a whistleblower; she had reported misdeeds within her department, which she claims ultimately led to her employment termination.

The woman’s claims come on the heels of a massive scandal that led to the resignation of at least one film commissioner within the department. That commissioner was the subject of the woman’s complaints, according to media reports. The woman had reported that the commissioner was becoming too involved in the permitting process for a popular television series that was being filmed locally.

When the woman reported the inappropriate actions, her boss essentially dismissed her claims and allowed the commissioner to continue meddling in permit affairs. It should be noted that commissioners could demonstrate a conflict of interest by questioning permitting activities related to films. In addition, the commissioner was accused of trying to force the Southern California Teamsters 399 out of the local filming project while helping secure special tax breaks for an upcoming Woody Allen film. It is clear that the woman was misusing her power for personal gain, according to news reports.

Documents show that the wrongfully terminated woman was fired last May, shortly after she submitted complaints to her supervisors about the misdeeds. She said she experienced pressure to approve inappropriate permits in connection with the commissioner’s unethical practices. The woman lost her job simply because she spoke out against misappropriation of government funds.

The woman could seek financial restitution from the Film Commission in connection with the wrongful termination and whistleblower case. Whistleblowers enjoy special protection in California, where laws are designed to encourage the reporting of unethical practices. The woman could receive financial compensation for loss of income and benefits, among other claims. She could also recover damages for emotional distress and legal fees related to the case.

Source: The Examiner, “Former San Francisco Film Office employee alleges retaliation for whistle-blowing,” Joshua Sabatini, March 17, 2013

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

JPL EMPLOYEE UNLIKELY TO GET RELIEF IN TERMINATION CASE

Initial reports out of Los Angeles County show that a judge will likely side with the Jet Propulsion Laboratory in a high-profile wrongful termination case. The case hinges upon a claim that the facility fired a worker because he attempted to promote intelligent design at work. The man, a computer designer who was integral in the network development for the Cassini mission, attempted to promote his intelligent design philosophy by distributing DVDs. He also created and maintained a website devoted to the philosophy.

In 2009, the man was told by a supervisor to keep his religious beliefs private. Not only is the man accused of pushing the creationist perspective, but his other actions rankled coworkers’ opinions of his professionalism. He apparently attempted to have the holiday potluck renamed after Christmas, and he vocally disagreed with Proposition 8, which was related to gay marriage.

The plaintiff contends that his leadership responsibilities and title were removed, though his salary remained unchanged. He formally filed the suit in 2010, but he lost his job in a wave of cutbacks that happened the next year.

The defendants’ legal teams have argued that the man was fired because of his outdated computer skills and inflexible attitude. The man was unwilling to work with others and made a poor teammate, both of which are negative attributes within the scientific community, according to the JPL.

Although the official decision has not yet been handed down, a judge in the case said he agreed with the JPL attorneys. The judge ordered defense attorneys to draw up a proposed judgment within 30 days of the formal ruling, which is expected to be handed down in the coming weeks.

This case illustrates the delicate nature of wrongful termination suits. JPL, a government-sponsored entity, likely maintained meticulous employment records to justify their firing decision. That documentation is required before terminating employment, especially in the federal system, and it probably weighed heavily in the judge’s tentative decision.

Source: The Los Angeles Times, “Judge tentatively sides with JPL in wrongful-termination suit,” Nov. 2, 2012

PROFESSOR SUES SCHOOL FOR VIOLATING WHISTLEBLOWER LAWS

A former department chairman’s lawsuit will remain under consideration by California courts despite attempts by the California Northstate University College of Pharmacy to have the case dismissed. The man alleges that he was terminated from his position at the school because of his whistleblower activities.

According to courtroom documents, the man was fired from his job at the school in July 2011 after admitting to accreditation investigators that the school did not have the resources necessary to continue its program. He also brought illegal tuition payment schemes to light by reporting them to his managers.

The man decided to sue the university under allegations of age discrimination, wrongful termination and retaliation under the False Claims Act. The False Claims Act protects whistleblowers from retaliation by their supervisors.

An Oct. 23 ruling confirmed that the man had a plausible case against the university, so the case will remain active in California courts. The case will proceed to trial because the defendant has not elected to pursue settlement options with the plaintiff. Neither party involved in the suit has submitted comments to local media outlets.

In this case, the man was probably fired because he dared to reveal unflattering evidence about the school to federal regulators. Withholding that information would have been overtly unethical, especially considering that the university was engaged in certifying healthcare professionals. In addition, the man decided to confront his supervisors with evidence of illegal tuition manipulation. Instead of being thanked for his commitment to ethical practice, he found himself dismissed from his job.

Whistleblowers, or people who reveal unethical or illegal practices in the workplace, are protected under both state and federal laws in the state of California.

The plaintiff in this case has not disclosed how much he is seeking in connection with the case, though he may choose to fight for reinstatement. If he chooses that option, the university may be required to place him in his old position. Additionally, the man may attempt to recover damages related to the whistleblower acts, including lost wages, back pay and emotional distress.

Source: The Sacramento Business Journal, “Court denies motion to dismiss pharmacy school whistle-blower suit,” Kathy Robertson, Oct. 25, 2012.