Coronavirus and Employment Discrimination

coronavirus and employment discriminationCoronavirus related anxiety is palpable. The worldwide growth of those infected and those that have died from the virus has been exponential. With travel bans and World Health Organization alarms ringing, it is natural that fears related to the virus and its symptoms abound.  But when those fears become outright cases of xenophobia, it is a real problem. If your workplace no longer feels safe because of prejudice and unfounded fears directed toward people of Asian descent, it is an issue that may require the assistance of a local employment attorney. 

Common Maybe, but Not Normal

The University of California Berkeley Health Services made a serious mistake when they sent out an Instagram post to students telling them that bias and bigotry are normal and common when facing the coronavirus. The university surely realized as much, leading to their quick deletion of the post. The fact is, while it may be true that many Americans experience bias and bigotry, it is not normal, and is certainly not acceptable. The unfortunate truth is, Western culture sometimes reverts to unreasonable xenophobia when faced with such issues, and it is not a pretty sight. 

A Comparison of Health Issues

The flu season this year in the United States has resulted in 19 million ill individuals, 180,000 people being hospitalized, and 10,000 fatalities. Yes, the coronavirus has deadly potential and it is important to have some perspective when considering the potential issues related to coronavirus.

Workplace Issues

What is an employer to do?  There certainly is a real issue confronting us; an epidemic apparently originating in Wuhan, China, is wreaking havoc worldwide. Actions have been taken to shut down non essential businesses, limit travel and shelter in place. Confirmed coronavirus cases continue to mount here in America. Employers of essential businesses have a responsibility to keep the workplace safe even in the face of a frightening epidemic. Common sense practices like regular hand-washing are appropriate. Here is what is not:

  • Just because an employee is of Asian descent, it does not mean they are carriers of the coronavirus. If your employee has not been to China in recent weeks, there is no need to treat them any differently than any other employee. Ostracizing such employees by word or deed is both improper and illegal. That is true for all employees, regardless of nationality.
  • Allowing employee gossip to flourish can be extremely damaging to employee morale and performance. If an employer is aware of unfounded rumors related to Asian-American employees and coronavirus, those rumors must be dealt with promptly. Failure to do so could result in legal action.

[Read more…]

Layoff vs Furlough – Employer Guidelines in a COVID-19 World

layoffLayoff or Furlough? As California enters this unprecedented time with Mandatory “Shelter In Place” orders throughout California, many employers are facing the imminent decision to reduce workforce while we all face uncertainty over when normal business with resume.  Many employers are unable to assign work to their employees at home and must consider greatly reducing their current workforce as soon as possible.

Employers reducing scheduling for non-exempt hourly employees with a reduced work schedule or not at all generally do not have to worry about liability for the reduction.  However, a common question is what to do with employees and whether employees should be laid off or furloughed during this time.

Layoff vs. Furlough

A layoff can be temporary or permanent.  It is recommended that layoffs occurring during this recent pandemic are temporary due to the unknown duration of the reduction of workforce.  When laying off an employee, the employer must follow all California Labor Laws and the Worker Adjustment Retraining and Notification Act (WARN) with no expectation the employee will return to work in the future.

A layoff is a separation of the employment relationship and the rehire process must occur for the employee to rejoin the workforce.  All benefits are terminated at the end of the term of the separation and the employee will no longer be employed by the employer.

A furlough occurs when the employer is reducing the days or weeks an employee may perform work.  An employer will suspend the work of most or all employees and send them home without pay.  This is a mandatory suspension from work that can last briefly or as long as the employer desires.  It typically occurs when the employer wants to retain staff that they cannot afford.  Furloughed employees also retain their benefits with the Company and retain their employment relationship with the employer.

Employees are generally furloughed when there is a reduction in workforce but the reduction is temporary and employees are expected to return to work on a certain date or a specific condition.

If an employee performs any work for the employer during the furlough, an exempt employee is entitled to an entire week’s pay and a non-exempt employee is entitled to payment for any time worked.  Employee work includes checking e-mails, making phone calls, or performing any task for the employer.  A “workweek” in California is defined as 7 consecutive days, starting with the same calendar day each week.  The workweek can begin on any day and any hour.  However, if an employer has no properly established workweek, the Division of Labor Standards Enforcement (DSLE) assumes the workweek is from Sunday through Saturday.

It is highly recommended that employers revoke all access for employees during the furlough and send notices of the change in employment status outlining the employer’s furlough procedures and policies.

The main difference between a furlough or laying off employees is that furloughed employees can come and go fairly easily but layoffs require the employer comply with all relevant Labor Laws, the federal and California WARN Act, and possibly conduct the rehiring process to reinstate the employees.  Furloughed employees also retain their benefits and employment status with the employer while a lay off is the end of the employment relationship.

Work Adjustment Retraining Notification (WARN)

When an employer decides to layoff its workforce, it is important to comply with the Worker Adjustment Retraining Notification Act (WARN) both federally and within California.

Federal WARN

Compliance with Federal WARN laws is triggered when there are temporary layoffs longer than 6 months and the layoffs include 50+ employees in a 90 day period.  Notice may be shortened if circumstances were not reasonably anticipated 60 days before the employee was laid off.  However, actual notice must be given is a much advanced time as possible.

California WARN

The similar California WARN laws provides no exception for the 60 day notice rule and it has not yet been determined if COVID-19 would be an exception to the notice requirements.  However, on March 17, 2020, Governor Newsom signed Executive Order N-31-20 relieving employers of some on these requirements.

Executive Order N-31-20 explains “the need to prevent or mitigate the spread of COVID-19” has caused employers to “close rapidly without providing their employees the advanced notice required under California Law.  Therefore, Labor Code sections 1401(a), 1402, and 1403 are suspended for the employer at this time.

This order will be in effect for the duration of the COVID-19 “emergency” and provides notice still must be given but amends the 60 day requirement to “as soon as practicable.”  The following is required by all California employers engaging in layoffs during this time:

  1. The employer must still give written notice to the employee under the WARN Act;
  2. The employer must give as much notice as practicable including a brief statement explaining why the notice is reduced;
  3. The notice must explain that COVID-19 was not reasonably foreseeable that the time notice would have been required; and
  4. The notice must include “If you have lots your job or been temporarily laid off, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for employees is available at labor.ca.gov/coronavirus2019

It is anticipated further guidance will be given to employers in the upcoming week by the Employment Development Department (EDD).

Other Resources

While employers are faced with difficult decisions there are resources available for both employers and employees.

All employers have the option the offer paid Sick Leave and use of Paid Time Off to their employees during any temporary closure but cannot require the employee use Sick Time.

All employees with changes in their current employment status should check the EDD regarding possible unemployment compensation.  Employers should advise their employees that more information is available at labor.ca.gov/coronavirus2019 for possible resources during this emergency.

Employers may also avoid potential layoffs by participating in Unemployment Insurance Work Sharing Program if the employer will reduce wages and hours no more than 60%.  This allows for a quick adjustment when the business improves.

If your business is closing or you will be laying off your entire staff, you may be able to utilize the EDD’s Rapid Response Services.

If you are an “Essential Business” with an exception to the Shelter In Place Order and will be staying open during this time, you may consider possible waivers of liability and informed consent.  A list of “Essential Business” can be found here.
[Read more…]

Huge California Sexual Harassment Verdict

Sexual harassment verdict2019 was not a good year for Alki David, owner of Alki David Productions and FilmOn. The year wrapped up with David being plastered with a nearly $9 million workplace sexual harassment verdict. The jury punctuated their sexual harassment verdict with an award for damages totaling an additional $50 million. 

The Gist of the Case

Mahim Khan claimed she was subjected to David’s groping, moaning, dropping his pants, and other examples of sexual harassment. The jury found that the behaviors, which occurred repeatedly over an extended period of time, were perpetrated with malice. That led to the punitive damages, and a finding that David’s companies fostered a hostile work environment.  David’s own attorney described him as “…loud, arrogant, and obnoxious.”  

David’s History of Sexual Harassment Shows He Does Not Learn

Khan was not the first to take David to court for his improper behaviors in the workplace:

  • Lauren Reeves was awarded over $5 million in damages following a sexual harassment case against him;
  • Chastity Jones was awarded roughly $11 million in her case against David.

How to Respond if You Experience Sexual Harassment at Work

Sexual harassment occurs every day in this country and across the globe. As a sexual harassment victim, you have the law behind you in these situations. Your best bet is to hire a reputable  sexual harassment attorney right away.  There are a number of steps you can take to ensure justice prevails. For starters:

  • Look at the guidance in your employee handbook, and follow any procedures outlined there;
  • Make a formal complaint to the human resources department in writing;
  • Keep detailed notes of what occurs, including who was present, what was said and done, and when and where incidents took place;
  • Speak to a direct supervisor about the issue and ask for protection from the abuser during the investigation process;
  • Seek support from friends, family, or co-workers if you feel comfortable doing so;
  • Consider filing a complaint with the EEOC if you believe discrimination is a factor in the harassment.
If Reporting Sexual Harassment Results in Retaliation

In the event an employer chooses to retaliate against you for coming forward, you still have the law on your side.  Retaliation may be in the form of job reassignments, exclusion from training or other opportunities, or outright degradation and shaming. These and other reactions to sexual harassment are not legal, and they are not to be tolerated.   [Read more…]

Strippers $3.65M Lawsuit Settlement

Strippers Federal Lawsuit SettlementIn an industry fraught with unscrupulous club owners, the financial plight of strippers has gone largely unnoticed by the legal system. That is, until AB5 gave strippers a leg up on the issue. 

Disparities in the Industry

In a general sense, strippers go to work, take the deal club owners offer, and make it out of there with as much cash as possible. Unfortunately, the amount they wind up with can be pretty paltry.  More often than not, strippers work strictly for tips, which they are often required to share with bartenders, wait staff, house moms, managers, and DJs. In addition to that, dancers fork over a variety of fees to club owners, including stage fees, dance fees, or other house fees. Sometimes, fees are based on the degree of nudity achieved by the end of a performer’s act. Naturally, the dancers are considered independent contractors, meaning they are ineligible for sick leave, workers’ compensation, insurance, and other benefits. Overall, the finances of the business seem pretty shady in many cases.  

Strippers Lawsuit Emerges

A class action lawsuit was filed against Spearmint Rhino strip clubs claiming that dancers were being misclassified as independent contractors. The suit alleged that the law was being violated because strippers were not being paid minimum wage, and they were not even allowed to keep a significant portion of their tips. They were also responsible for purchasing their own wardrobes. Finally, dancers were never provided legally required wage statements.

The Settlement

Although the suit was brought in 2017 before AB5 was on the books, the plaintiff clearly saw the writing on the wall, and agreed to a settlement of $3.65 million. Here is how it was broken down:

  • $10,000 to be divided between the four strippers who brought the original suit;
  • $75,000 to the state’s Labor and Workforce Development Agency;
  • Just over $900,000 for attorney’s fees;
  • $2.6 million to be divided among all eligible class members who submit a claim.

In addition to the strippers financial payout, dancers have been reclassified as employees.

Tensions Over AB5

Despite the influence of AB5 in this case, there are many in the exotic dancing field who see the other side of the coin. They prefer the flexibility of being independent contractors and like choosing multiple clubs on the schedule that is convenient to them. Giving up their independence and having to be under the control of an employer is the last thing they want, and they said as much in a protest in front of Los Angeles City Hall [Read more…]

Commute Time Compensation?

commute time compensationCommute time compensation? Most people who work spend a fair amount of time commuting to the job site. Furthermore, many jobs require workers to commute as part of the job. With such variety in the expectations and commuting requirements for various occupations, how can you know whether or not your employer is treating you fairly when it comes to commute time? Actually, the courts have come up with some pretty clear guidelines on this topic.   

Commuting in a Company Vehicle

Installation and repair crews for Pacific Bell Telephone Company believed they should be paid for their commute time to and from home because they were driving vehicles that were provided by Pacific Bell, and those vehicles were equipped with the tools and equipment necessary to address customer needs. They decided to pursue the issue in court.  

Details of the Commute Time Case

Technicians were paid hourly for an eight-hour day to address customer issues at customer’s homes. While driving the prescribed vehicle and using company tools was required, employees had a couple of choices when it came to those vehicles:

  • Technicians could take the company vehicle to and from their own homes. This option was known as the Home Dispatch Program (HDP). Technicians received no pay for their commute time driving to a customer’s home prior to 8:00, and they were not compensated for the time spent driving home after their last appointment.
  • Employees could drive their personal vehicles to the Pacific Bell garage to exchange it for a Pacific Bell vehicle. These employees were paid for their time spent going to the garage in the morning, and from the garage home at the end of a shift.

In either case, employees were compensated for the commute time driving to and from the warehouse when they needed to restock materials for the job.

Court Findings

The California Supreme Court defined hours worked as those hours during which an employer maintains control of an employee. The issue of employer control was central to their findings, and was directly correlated to whether or not riding in employee-provided transportation was required. The court referred to Morillion v Royal Packing Co., which dealt with a similar issue. In that case, workers were required to meet at a particular place in order to take the company bus to the worksite. Employees were under the control of their employers at that point because they could not make the decision to stop at a drive-through window for coffee, could not pick up or drop off kids on the way, and could not run other errands while on the bus. Therefore, the commute time on the bus counted as hours worked.  

In the case of the Pacific Bell Workers, employees were not required to drive a company vehicle to and from home. Additionally, they were free to make stops during their commute time in the company vehicle, meaning the worker was not under the control of the company. Therefore the commute time spent under the HDP plan was not compensable. [Read more…]

The End of The “No Rehire” Clause

end of no rehire clauseHave you been forced to sign a no rehire clause in order to settle a workplace dispute? When California Highway Patrol analyst Camryn Fields experienced sexual harassment at work, she followed company protocol and reported the issues to her supervisors. They, in turn, did nothing to quell the problem, leading Fields to seek legal redress. California Highway Patrol eventually settled the suit, and included in the final documentation a no rehire clause. It meant that Fields could not find work in any related state agencies after signing the agreement, which led her to a senate hearing where she bemoaned the unfairness of the double victimization. 

What is a No Rehire Clause?

As the name implies, a no rehire clause bars employees from future employment with an entity following her departure. In Field’s case, even other government agencies were empowered to dismiss her applications without consideration because she had signed such an agreement.

California’s Ban

In October 2019, Governor Gavin Newsom signed AB-749 into law, banning the use of these clauses after an individual has settled an employment dispute. While individuals who have engaged in sexual assault or harassment may be barred from future employment with an entity, a victim of such cannot. The law takes effect in January 2020, and faces stiff opposition from the California Chamber of Commerce. Their fear is that employees fired for legitimate reasons will be able to claim that they were retaliated against if they are not rehired down the road.  Nevertheless, employers should take the law seriously, and revise any agreements accordingly in the new year. The details of the bill have provisions banning the following:

  • Contracts of any kind that restrain individuals from lawful employment;
  • Settlement agreements that limit an aggrieved individual’s right to work for an affiliate or subsidiary of a parent company, in another division of an employer’s business.

Who is Not Protected by AB-749?

Limited options are available for employers who are unhappy with the new law. No Future Employment provisions may be included in agreements if there have not been legal claims initiated by the aggrieved party, which is someone who has filed a claim in any of the following places:

  • A court;
  • An administrative agency;
  • Through an employer’s complaint process;
  • Any formal forum used to address disputes.

Other instances where rehire ineligibility may be legal include when there is documentation of an employee’s misconduct or subpar job performance, or when there is reasonable evidence that the employee engaged in sexual assault or harassment. [Read more…]

Do Your Problems at Work Constitute a Hostile Environment?

hostile environment at workLet us say you really hate your job, and it is mostly because of the people with whom you work.  A negative and hostile environment at work makes it miserable day after day. Does what you are experiencing rise to a level that might be worth seeking legal help?  The short answer is… maybe. 

Hostile Environment at Work

If the environment at work is leading to feelings of depression or anxiety, it is possible that your employer is not taking state and federal harassment laws seriously.  Particularly if the bullying behavior or abuse is a repetitive problem against a protected class, a lawsuit may be your best option going forward. In California, any unwanted behavior toward a person in a protected class that would be judged as offensive to a reasonable adult could legally be classified as a hostile work environment

Protected Classes

Federal law makes it illegal to discriminate against any person based on the following:

  • Race, color, nationality;
  • Religion;
  • Sex;
  • Age;
  • Disability;
  • Citizenship;
  • Genetics.

In California, the anti-discrimination laws are more extensive, and prohibit discrimination abased on the following:

  • Sexual orientation;
  • Gender;
  • Military status;
  • Politics;
  • Marital status;
  • Having been a victim of assault, domestic violence, or stalking.

Is it Illegal?

The fact of the matter is plenty of nasty or annoying behavior is not necessarily illegal. In order to cross the legal standard, one of three things about the behavior must be true:

  • It is discriminatory;
  • It violates specific company policy;
  • It leads to safety issues in the workplace.

Additionally, in California issues are generally part of a series of actions that compile to create a hostile workplace environment.

Who Might be Guilty of Harassment?

Many people mistakenly believe that harassment might only occur at the hands of a supervisor or co-worker.  In actuality, clients, vendors, or customers might be guilty of harassment, and an employer has a responsibility to address issues involving even these groups.

What if the Harassment is Unintentional?

If there is one thing the #MeToo movement has brought to light, even comments or behaviors that were not intended to offend could be considered harassment, particularly if they continue after a request has been made to stop. Furthermore, a victim of harassment does not necessarily have to be the target of the comments or behavior. Anyone who is exposed to offensive, intimidating, or abusive conduct and who experiences offense or discomfort may have the right to pursue action against the offender. [Read more…]

Mandatory Arbitration Mostly Prohibited in California

Mandatory Arbitration Mostly Prohibited in CaliforniaCalifornia law on mandatory arbitration is about to change. Will the new law be better or worse for employees and businesses? Do you have a bone to pick with your employer? If employment policies or practices are illegal and unfair, you may wish to pursue legal action against your employer.  Starting in January 2020, that right will be afforded to you, thanks to a new bill that was just signed into law here in California. 

AB 51

Governor Newsom signed AB 51 into law, prohibiting employers from requiring employees to waive their right to sue when it comes to allegations of impropriety in the workplace. This could include anything from discriminatory behavior, labor violations, sexual harassment, retaliation, and any other offenses that may be illegal. While up until now many businesses compelled employees to agree to private arbitration in lieu of a lawsuit, the new legislation eliminates forced arbitration altogether.

Understanding  Mandatory Arbitration Agreements

Arbitration agreements are designed to handle workplace disputes without involving the courts.  Employers generally favor them for a number of reasons:

  • Arbitration is faster than a courtroom proceeding;
  • Arbitration is generally less expensive than lawyer fees and court costs;
  • Claims against employers never make it to a jury, avoiding massive payouts from employers.

For employees, however, mandatory arbitration can be a huge disadvantage when they have a solid case of wrongdoing.  Juries are often quite supportive when it comes to the mistreatment of workers, and have been known to award hefty damages. Even the threat of a jury trial can result in higher offers from companies who wish to avoid a courtroom battle.

Is Arbitration Fair?

In some cases, arbitrators, who are themselves employed by arbitration firms, tend to have a certain amount of bias toward employers who regularly utilize them. Researchers call this the repeat player effect, and report that workers are 500% less likely to prevail against an employer who had previously used a particular arbiter. In situations when workers did win, they were paid significantly less in settlements.

A Tricky New Law

What makes the whole thing somewhat controversial is the fact that the Supreme Court has previously determined that mandatory arbitration agreements are, indeed, legal. In California, it means that, while these agreements may be offered, and may be enforced if signed, employees now have a choice when it comes to signing such an agreement.  Employers may not retaliate against anyone who refuses to sign this document, and may not revoke any job offers in the event a would-be employee chooses not to sign on to such an agreement. [Read more…]

New Law Related to California Sexual Harassment Training

california sexual harassment training deadlineCalifornia sexual harassment training laws, deadline extended. If you work for a company that has not trained its employees on the laws regarding sexual harassment in the workplace, the likelihood of such harassment occurring is naturally higher. That is expressly why California sexual harassment training law requires employers to provide this important information to all employees. Recent changes to the law impact the expectations for this training. If you have concerns about sexual harassment, a local labor and employment attorney may be able to help. 

Importance of Effective Training

Recent allegations of sexual harassment plague the headlines. The failure to provide effective training can lead to employee missteps in the form of improper “jokes,” or even outright threats, intimidations, and written, verbal, or physical assaults. Any of these can make the workplace feel unsafe for employees, and are examples of behaviors that are untenable under California law.  While the perpetrator of such actions can be held liable for such actions, employers who fail to address them in a proper and timely fashion are also accountable by law.

New California Sexual Harassment Training Law Deadline

Prior legislation required employers with five or more employees to arrange for a sexual harassment training by 2020.  SB 778, which was signed into law in August 2019, extends that deadline to 2021.

California Harassment Training Requirements

The requirements for California sexual harassment training remain the same — two hours of education on the issues for all supervisors within six months of gaining such a position, at least once every two years. The training must speak to issues of abusive conduct according to California law.

Seasonal Employees

Temporary or seasonal workers also must undergo training. This must occur within 30 days or 100 hours of work, whichever comes first, if the worker has been hired to a position that will last six months or less. 

Resources

There is no excuse for employers who claim they do not know who to go to for California sexual harassment training materials. The Department of Fair Employment and Housing (DFEH) has been tasked with creating online materials that employers may use. These materials must have an interactive section, necessitating participant interactions wherein they answer questions periodically in order for the program to continue running. When employees have questions throughout the course, the human resources department of the employer is required to address them.  [Read more…]

Natural Hairstyle Discrimination Banned in California

natural hairstyle discriminationHave you missed out on employment opportunities because of natural hairstyle discrimination of your afro, braids, or locks?  Starting in January 2020, employers will no longer be allowed to discriminate against people based on natural hairstyles that they may not like. The Governor signed SB 188 into law, strengthening California’s prohibitions on race discrimination. If you experience issues related to your natural hair in the workplace, it may be worthwhile to contact local employment attorney about next steps.  

History of Natural Hairstyle Discrimination

While both state and federal laws ban racial discrimination, hairstyles have not always been protected in all federal courts. The issue came into the spotlight in December 2018, when a young black wrestler in New Jersey was made to choose between his dreadlocks and being forced to forfeit a wrestling match. It was a horrible decision that no person, let alone a high schooler, should be have to make. The California legislature acknowledged a number of historical trends in the text of SB 188:

  • Traits associated with blacks, including dark skin and kinky hair, have historically been viewed as a sign of inferiority in this country;
  • Society’s understanding of “professionalism” has been largely linked to European norms of appearance;
  • Irrespective of strides to reduce racism, hairstyles remain a significant source of racism in California and throughout the country;
  • This racism has very real impacts on the health and economic status of Black people and communities;
  • Workplace dress codes that ban natural hairstyles, including braids, afros, locks, and twists, disparately impact Black people;
  • Since hair is ultimately a proxy for race, discrimination of the basis of hair constitutes racial discrimination.

Practical Meaning of the Law

The impacts of this new law are significant. For individuals who have experienced discrimination based on hairstyles, affirmative relief is now a reality. This could mean a number of remedies are available, including:

  • Reinstatement to a former position;
  • Back pay for amounts lost due to termination or job reassignment;
  • Out-of-pocket expense reimbursements;
  • Grants of tenure previously denied;
  • Promotions previously denied;
  • Training opportunities for which the employee was previously deemed ineligible.

A Name with Meaning

Senate Bill 188 specifically identifies traits generally associated with race as being on the list of issues deserving of legal protections, along with sexual orientation, disability, sex, race, color, religion, and national origin. It has been given the acronym the CROWN Act, in order to promote the idea of respect for natural hair. No longer will Californians have to make grooming choices related to natural hair that could have significant ramifications in the workplace or at school. Instead, the Senate, which passed the bill unanimously, hopes that an expanded view of what constitutes “professionalism” will promote greater acceptance of the black experience in the state. [Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.