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…]

Women’s Soccer and Gender Discrimination

womens soccer and gender discriminationAfter winning the World Cup title, the U.S. women’s soccer team has amassed a huge amount of support as they fight for equal pay and better working conditions. Their claim of the institutionalized gender discrimination dominating the sport for years will now be heard in a Los Angeles courtroom. 

Specifics of the Women’s Soccer Claim

While the obvious complaints around pay inequity are well publicized, the women assert a number of other discriminatory problems, including:

  • Where they are allowed to play;
  • The number of games played;
  • The quality/quantity of medical treatment and coaching available;
  • Travel arrangements for away games.

The suit against U.S. Soccer is a prime example of similar struggles in the world of women’s sports in this country. W.N.B.A. players and American hockey players have all been struggling to improve working conditions and salaries for women for years, and have been coordinating with the U.S. soccer players and their union to bolster the efforts.

Equal Pay Grievances Aired

Taking the lead in speaking up for the women’s team is Megan Rapinoe, the team’s captain. She notes that the women’s team plays more games than the men’s team, and has a significantly better record. Nevertheless, they have spent decades getting far less pay than the men’s players.  The problem extends beyond U.S. Soccer. FIFA, the world-wide governing body for soccer, has been charged with a number of discriminatory actions, involving issues related to World Cup bonuses and standards for referees to soccer fields made of artificial turf. FIFA has responded by doubling World Cup prize money for women and by eliminating play on artificial turf for the past couple of years. The women were also afforded the luxury of flying on a chartered plane for the tournament, and provided improved meal and accommodation stipends.

Nothing Simple Here

Although many people agree that equity is essential in the world of sports, some point out that the contracts for men and women are very different, and it is not a simple apples-to-apples comparison. Even if the contracts were identical, women’s sports are simply not as popular or as profitable as their male counterparts’ games, and that is a fact that must be part of any compensation calculation, according to the naysayers on the other side of the argument. Yes, women work just as hard and experience incredible success. But ticket sales directly connect to compensation, and therein lies the rub.

That being said, does it make sense that the prize money for the men’s World Cup is nearly 10 times the amount for the Women’s championship? The women answer with a resounding no. It remains to be seen how the court will respond to these complicated issues. [Read more…]

$7.5 Million Comcast Wage Lawsuit Settlement

comcast wage lawsuit settlementComcast wage lawsuit settlement. On the heels of two years of litigation between Comcast/O.C. Communications and roughly 4,500 technicians, a class action suit was settled for $7.5 million plus litigation fees. The battle was over failure to pay workers for all of their hours, failure to pay for piecework, neglecting to pay overtime, and, in some cases, refusing to pay minimum wage. If you have experienced similar problems in the workplace, an efficient and knowledgeable labor law attorney may be able to help. 

Details of the Comcast Wage and Hour Lawsuit Case

According to the wage lawsuit settlement records, O.C. Communications, who teamed up with Comcast Cable Communications Management, hired a number of non-exempt cable technicians to install and maintain cable connections. The workers claimed that they were not paid for rest and/or meal breaks. In addition, they were not reimbursed after submitting detailed expense reports. These claims of underpayment were compounded by the assertion that workers’ wage statements were neither itemized nor accurate.  

Workers shared personal accounts to illustrate the problems:

  • One employee was assigned four times his normal workload one day. His boss told him to eat his lunch while driving from one installation site to another, and get the job done without taking breaks;
  • Another employee was required to supply his own tools and supplies, including everything from screwdrivers and staple guns to various types of cable and drill bits.  This, in addition to work boots and pants.
  • One former employee asserted that working conditions were often unsafe, saying that typically workers might climb 28-ft. ladders and shimmy through confined spaces like attics all in the same day. Oftentimes, buildings were rat-infested and crawl spaces were littered with rat feces. Nonetheless, workers were not given protective equipment.
  • Mandated overtime was the biggest complaint for another employee, who said 12-hour days were the norm, adding up to 60-hour work weeks on a regular basis.

Reaching a Settlement

The court refused to sanction the original settlement agreement for a number of reasons:

  • Judge Chhabria believed the claims to hold “substantial merit,” and the labor code violations appeared to be a systemic problem for the defendants.
  • The settlement involved an amount that was well below what employees were entitled to, and the judge was reluctant to give the companies such a big break unless there was evidence that their business practices would be brought into compliance with Labor Codes.

Ultimately, the parties did settle, and the $7.5 million will be divided among the 4,500 workers who formulated the class action. [Read more…]

Unpaid Internship? Not so Fast!

unpaid internsipIf you have been offered an unpaid internship and are jumping at the chance to get some experience under your belt, you should be aware that the Fair Labor Standards Act (FLSA) has something to say about it. There are multiple stipulations associated with the ability to legally contract with unpaid interns, and if the company does not meet all of them, they must pay such trainees.

FLSA requirements for an Unpaid Internship

The FLSA criteria are unflinching: All six of the following requirements must be met in order for a company to offer an unpaid internship:

  • The training involved must be comparable to that which would occur in a vocational school. In best-case scenarios, a training program will be developed with specific goals designed to help the intern gain qualifications for real-world work. Although operational tasks and duties might be part of the internship, a classroom and/or educational setting should be a part of the training involved. Ideally, the training would go hand in hand with coursework and credit or certification of some kind.
  • All training should be designed to be for the primary benefit of the intern. Duties should provide necessary and marketable skill development.
  • Interns cannot be used in lieu of regular employees. Rather, they must work under close supervision. Presumably, they would assist regular employees with critical work, but would not be entrusted with the responsibility for such tasks on their own.
  • Employers should derive no particular or specific immediate benefits by having interns on the premises, and, in fact, may actually experience some degree of slow-down in processes or outcomes for a period of time, as employees’ time will be split between training and their regular responsibilities.
  • Interns should have no guarantee of future employment with the company at the end of the internship. A written agreement stating as much should be a part of an internship agreement.
  • Both the intern and the employer must have a common understanding that wages will not be a part of the agreement. A written contract must stipulate that the training will occur with no expectation of or intention to assign wages in exchange for any work done by the intern.

Ultimately, when courts are asked to examine the legality of an unpaid internship, they tend to consider who the primary beneficiary in the arrangement is. If the intern gains substantially from the training experience, it could legally be deemed a trainee experience, and salary is not required. If the employer is the primary beneficiary and gains through the intern’s work product to a substantial degree, the intern must be viewed as an employee, and compensation is required. [Read more…]

Wage Suit – Bus Drivers Sue

wage suit - school bus driverSan Francisco bus drivers are fighting a wage suit against First Student, Inc., their employer, who allegedly underpaid them, in a breach of contract. If you find yourself in a similar situation, the assistance of a local employment attorney could prove to be useful.

Wage Suit – The Charges

The lawsuit, Humes v. First Student, Inc.,which was filed in 2015, was recently given a breath of life by the Ninth Circuit, giving the plaintiffs the opportunity to create a class action suit.  According to the Complaint, bus drivers had several issues with the company:

  • They were paid amounts below minimum wage;
  • They were not paid on schedule;
  • They were not provided with accurate statements detailing their hours and wages;
  • They were subject to unfair business practices;
  • Their oral contract was breached.

Details Behind the Wage Dispute

According to a negotiated contract, the bus drivers were promised a minimum number of hours of daily pay regardless of the number of assignments per day.  In other words, drivers were guaranteed a minimum daily wage, whether or not the buses were utilized for the full day. In addition to driving, employees were responsible for cleaning and fueling the buses.  In the event these responsibilities took more time than the hours set, they were to be paid for the additional hours worked.

In 2015, the policy for tracking hours worked changed. Employees were required to track only the hours worked that were beyond regular time. These hours were recorded in what was called an exception log.  Additionally, drivers were expected to complete a formal billing sheet, which was ultimately sent to the school district for billing purposes. Drivers believe that the record keeping led to confusion in the payroll office, resulting in their wage suit for alleged underpayment and check stub errors.

Information Required on Pay Stubs

According to Labor Code 226, particular information must be included on a worker’s pay stub, including:

  • The number of hours the employee worked during the pay period;
  • The gross earnings for the pay period;
  • Deductions from wages;
  • The net earnings for the pay period;
  • The dates of the pay period;
  • The hourly rate of pay.
Statute of Limitations

The statute of limitations for a wage suite of this nature is just four years. Nonetheless, the court has agreed to hear claims dating back to October of 2011, based on arguments presented by the plaintiff. [Read more…]

Tesla Whistleblower

Tesla WhistleblowerDid Elon Musk try to ruin a Tesla whistleblower? It seems all is not well at Tesla’s California plant, nor at its Nevada factory.  This, according to former employee Martin Tripp, who allegedly leaked information about inefficiencies and product problems.  In response to Tripp’s evaluation of conditions at the factory, it seems Elon Musk, the billionaire owner of Tesla, sought his own brand of revenge.  

Details of the Tesla Whistleblower Case

A stunning report released to the Business Insider indicated that Tesla Inc. had some serious problems. It seems the Gigafactory was having to retool or completely dump 40% of all raw materials at its battery factory due to safety issues. The result was a $150 million deficit, all due to inefficiencies in the company.  Furthermore, some unsafe batteries were purportedly making it into cars in the marketplace. When the report made it to the media, Tesla denied it, but Musk was beyond irked, according to reports. In his agitation, he assigned investigators to locate the source of the leak.

In short order, the Tesla whistleblower was identified as Martin Tripp, an assembly line worker at the Gigafactory. Tripp, a self-described idealist,  had been hoping to improve procedures.

According to Musk, Tripp was no Tesla whistleblower hero hoping to inspire improvements; he was an enemy guilty of sabotaging the company.  In fact, Musk mused about the possibility that Tripp was a spy, working with rival industries or corporations to kill the eco-friendly vehicles under design. Could Tripp be connected to the oil industry, or might he be conspiring with other auto manufacturers? Tesla had been bruised by the media coverage, and Musk was not about to let that go. He sued Tripp for $167 million.

Shortly afterward, the local sheriff contacted alleged Tesla whistleblower Trip to say that an anonymous tip had led them to his doorstep.  Someone had called in and reported that Tripp was orchestrating a mass shooting at work. Police quickly determined that Tripp posed no threat, as he was weeping and had no weapons. Tripp confided to officers that Musk frightened him. In fact, he thought it likely that Musk was the anonymous caller.

Per this article, an investigation revealed that Musk did, indeed, want to destroy Tripp. The PR department, in fact, had propagated rumors about Tripp: He was dangerous; he was involved in a conspiracy against Tesla; he was potentially homicidal.  The security team followed Tripp around, hacked his phone, and sent law enforcement down rabbit holes as they attempted to understand the issues. Tripp lost his job and left the country to get away from the nasty publicity, his life, ostensibly, ruined. [Read more…]

Mistreated Employee Lawsuits Find a Favorable Climate in California

mistreated employee lawsuitsIt appears that the current California legal climate is favorable for pursuing mistreated employee lawsuits. If a potential, current, or previous employer has discriminated against or otherwise mistreated you in California, you are in a good position to exact revenge if you so desire. That is because California is well known to be amenable to rectifying the wrongdoing of errant employers Certainly, many factors play in to California’s protective attitude toward wronged employees. The #MeToo movement brought issues related to sexual harassment and retaliation to the forefront of public discussion. Even before #MeToo hit the public airways, though, California legislators were paving the way to an even playing field for anyone involved in a workplace dispute. In fact, the American Tort Reform Foundation went so far as to say that California courts go out of their way to assign responsibility to companies in employer liability lawsuits by allowing for no-injury litigation through PAGA lawsuits, making California the most employee-friendly state in the nation.

What is PAGA?

We’ve blogged about PAGA before. PAGA, or the Private Attorneys General Act, gives employees the right to sue their employers civilly for violations of the Labor Code. The process requires a submission of the complaint to LWDA (Labor and Workforce Development Agency) with the potential for an investigation of the matter. Aggrieved employees wishing to pursue civil action are authorized to do so through Labor Code 2698-2699. Some of the requirements for such legal action include:

  • Online filing with a copy of the complaint sent to the employer via certified mail;
  • Employer responses also filed online, with copies sent to the employee vie4a certified mail;
  • Paying required filing fees;
  • Waiting up to 60 days for a LWDA review;
  • Court approval of settlements, with copies of all judgments provided to LWDA.

Mistreated Employee Lawsuits – Successful Court Cases

Mistreated employee lawsuits have found juries to be sympathetic to their plight in recent years:

  • When Allstate Insurance fired a 30-year employee based on his arrest record, that employee fought back in court, ultimately being awarded nearly $3 million in compensation. While roughly one-third of the award was for wrongful termination, the rest was for defamation. But that was just the tip of the iceberg. The jury added another $16 million to the award in punitive damages, sending a clear message to the employer that wrongful termination will not be tolerated.
  • When two employees asserted that they had suffered sexual harassment from the general manager of Keyways Vineyard and Winery, things did not end there. After registering their complaint, the women experienced retaliation in the form of being removed from the weekly schedule. A jury awarded the plaintiffs $11 million.

[Read more…]

Transgender Rights – Workplace Protections

transgender rights in the workplaceTransgender rights are human rights. According to Amnesty International, transgender individuals are the recipients of casual discrimination on a daily basis. In fact, they undergo as many as 60 instances of discrimination or harassment every single day. While many of these indiscretions are made without malice, or even unknowingly (such as using a pronoun other than the one the transgender person identifies with), they still take a toll on the transgender community. California lawmakers have taken deliberate steps to provide protections for transgender workers. The goal is to reduce and even eliminate instances of harassment and/or discrimination in the workplace that is based on gender identity, sex, or gender expression. The rights of transgender individuals in the workplace are important to the health and safety of the worker, fellow employees, employers, and the business itself.

Posting the Transgender Rights Poster

All employers with one or more employees must post the California Department of Fair Employment and Housing poster regarding workplace rights for transgender individuals. The poster clarifies any questions employers and their employees may have as to some specific rights for transgender employees.

Parity in Restroom Facilities – Transgender Rights

All employees are entitled to feel safe in restrooms, locker rooms, and similar facilities. Individuals who are transitioning and/or who are transgender have particular protections when it comes to restrooms in the workplace.  

  • California standards ensure that employees are allowed to use the facilities that correspond with their gender identity.  
  • Single-occupancy restrooms must be identified as gender-neutral with signs that label the room as such.
  • It is the choice of the transgender individual whether to use a single-occupancy restroom or a general use restroom that is designated as either male or female. Employers do not have the right to force transgender individuals to use the single use facilities exclusively.

When are Transgender Rights Protections Viable?

The California Fair Employment and Housing Act provides protections from harassment and discrimination for transgender individuals, among others. These protections apply to hiring, wages, opportunities for training and promotions, lay-offs, firing, and retaliation. They protect transgender workers before, during, and after social, legal, and physical transitioning.

Social Transition

Individuals undergoing social transition may not be discriminated against for the issues such as following:

  • Changes in attire;
  • Alterations in hairstyle;
  • Preferences for different pronouns.

Physical Transition

Transgender individuals who undergo hormone therapy and/or surgery may not be discriminated against during or after therapies and treatments that change the physical body of the individual.

Legal Transition

At the culmination of the social and physical transition, transgender individuals may ultimately be required to undergo a legal name change, which may, in turn, result in updates to social security cards, driver’s licenses and other identification, birth certificates, and additional important documents. These changes should not result in workplace penalties. [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.