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…]

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…]

Complaining at Work can Get You Fired

complaining at workCan I be fired for complaining at work? Let’s say you have a complaint about how things are going at work. If you are under the impression that free speech is a God-given right to which you are entitled anytime, anywhere, you are wrong. Although the Fair Work Act makes it illegal to fire someone just for complaining, your employer can limit certain speech in terms of the time and venue in which you express your complaints.

Complaining at Work – Google Drops the Hammer

James Damore was—emphasis on was—an employee at Google. That is, until he posted a lengthy document about the company’s efforts to improve diversity among employees on a company platform. His views were allegedly steeped in sexism, and were offensive to fellow employees, who refused to buy into the notion that the biological superiority of men was the cause of the gender gap in the technology industry. Whether you agree with Damore or not, the legal issue centers on an employer’s right to control speech on a platform paid for by the company. As it turns out, although public and government entities are not allowed to restrict your free speech, the same is not true for private companies. So, how do you, as an employee, know what the rules are when it comes to expressing yourself?

Does Your Company Policy Cover Complaining at Work?

When Google CEO Sundar Pichai responded to Damore’s post, he specifically referred to the code of conduct at Google. Most companies have an employee handbook that details expectations related to this type of thing, and they generally close by stating that failure to abide by the company’s expectations can lead to disciplinary procedures, and, potentially, termination.  It would behoove employees to be clear about company policies.

Know What You are Talking About

Damore was taking the company to task for policies promoting diversity, but his point became lost in controversial statements that have been scientifically disproven. His complaint became weak and his argument ineffectual.

Complaining at Work – Protect Yourself

If you have legitimate complaints about the job, there are some things you can do to ensure your complaining at work is heard without resulting in unemployment:

  • Formalize the complaint: Whether that means inviting a union representative, scheduling a meeting with management or HR, or simply writing your issues on a workplace form, demonstrate that you are serious about a workplace issue.
  • Assemble prior performance reviews and other documentation that may rebut allegations against your job performance in the event the complaint ruffles some feathers.
  • Offer constructive criticism, and, if possible, tell management what you would like to have happen.
  • Handle yourself professionally. Your supervisor will have a tough time saying you have an attitude problem if you do.
  • Document the interaction. If your complaint is related to discrimination or other legal issues and the company fails to respond appropriately, they could be facing legal trouble.

[Read more…]

When Employers Claim Employees are Independent Contractors

independent contractorsFor some companies, labeling employees as independent contractors has not turned out to be such a great money-saving idea after all. Some companies will do anything to save themselves a buck, even if it harms workers and violates state and/or federal law. This appears to have been the case for CMI Transportation, K&R Transportation California, and Cal Cartage Transportation Express, all subsidiaries of NFI Industries,

Claims in the Case

According to court documents regarding these port-trucking companies,workers were classified as independent contractors, and were then hired to get products transported. This saved the companies a boatload of money, but how?  

The Cost of Doing Business

The Bureau of Labor Statistics determined that wages account for roughly 70% of employee compensation, while benefits take up the additional 30%. So, if employers can avoid benefits that are mandated by law, such as Social Security, unemployment insurance, workers’ compensation, and Medicare, they can really make out well. Additionally, they never have to go to the bargaining table to discuss issues like vacation pay, sick pay, pensions, paid leave, and the like.

Employees or Independent Contractors?

With the huge savings associated with hiring independent contractors, why does every business not label workers that way? The fact is that making such determinations is not a matter of personal choice. There are legal questions to consider. Answering yes to one or more of these questions likely means workers are employees, deserving of all benefits the law dictates:

  • Is the business reliant on the work in order to do business? Someone who lays carpet in a department store is not essential to daily business operations, whereas clerks and warehouse workers are.
  • Is termination without cause a right of the employer? If so, the worker is not an independent contractor who can only be terminated only if the terms of the contract are violated.
  • Is the worker considered to be semi-skilled or unskilled? If so, they are the target audience for protections by the California Unemployment Insurance Appeals Board.
  • Did the employer train the worker? Independent contractors usually provide a service for which they are already certified.
  • Is the worker expected to provide his or her own supplies for the job? Employers do not generally provide tools and such to independent contractors.

Independent Contractors and the Consequences of Misclassification

In California, there is a big price to pay when employers intentionally misclassify their workers. In one case, a judgment for $13 million was won when janitors were misclassified as independent contractors by a couple of companies. What will happen in the trucking lawsuit remains to be seen. [Read more…]

Unsafe Work Environment and California Law

unsafe work environmentUnsafe work environment and employer responsibility.Everyone deserves a safe working environment, but what if your employer fails to implement common sense procedures, training, and equipment in order to keep workers safe and productive? If you are injured due to employer negligence, you may be entitled to more than just workers’ compensation. Your employer may be on the hook for compensatory and even punitive damages. An experienced employment law attorney can help.

Facts About an Unsafe Work Environment and Workplace Injuries

The truth is, workplace injuries are an epidemic, with nearly 4 ½ million occurring in this country every year, not counting the fatal injuries. These unsafe work environment accidents cost billions annually in medical and insurance costs, not to mention lost wages, interruptions in production, and other costs.

Unsafe Work Environment and Employer Responsibilities

Workplace safety is no minor responsibility. The Occupational Safety and Health Administration (OSHA) details specific practices and procedures that employers must follow. Among the requirements are:

  • Provide a hazard-free workplace that is in compliance with OSHA standards;
  • Regularly conduct inspections to determine workplace complies with OSHA safety standards;
  • Ensure that employees use properly maintained equipment and tools;
  • Warn of potential hazards with posters, labels and/or color coding, and make sure employees are aware of health/safety rules;
  • Regularly update and communicate operating procedures related to safety issues;
  • Provide safety training in a language understood by employees;
  • Implement a written program to communicate information relating to hazardous chemicals and train employees in intervention methods;
  • Post employee safety rights and responsibilities;
  • Maintain accurate illness and injury reports;

Employee Rights When There is an Unsafe Work Environment

When an employee believes that the working environment is dangerous, the National Labor Relations Board (NRLB) protects that employee’s right to refuse to work. This applies to all workers, whether or not they are union members.

Unsafe Work Environment and Employer Penalties

State and federal governments intently regulate safety practices, and violations can result in serious and expensive consequences:

  • When a GM plant in New York experienced multiple violations, including blocked exit routes, improper protective equipment, and inadequate guards around moving machinery parts, they were fined $160,000;
  • A Weyerhauser plant in West Virginia under reported injuries and illnesses, they were fined $77,000 and audited for 9 months;
  • Fru-Con Construction Corp failed to properly secure a launching truss, they were fined $280,000.
When Can You Sue for a Workplace Injury?

If your employer knowingly facilitated a hazardous workplace, you may be able to seek damages through the courts. Because you have legitimate expectation to a safe working environment, egregious or intentional conduct that leads to injury may be compensable. Additionally, if your injury was the result of defective equipment or other products, the manufacturer may be liable for damages. [Read more…]

Employers: Prevent a Sexual Harassment Case

sexual harassment complaintAs an employer, are you liable if one of your employees is accused of sexual harassment? Although every case is different, there are things you can do to provide an affirmative defense in the event a lawsuit comes your way. Beyond that, having an experienced employment law attorney on your side is a must.

Sexual Harassment Prevention Training

The first thing every employer needs to do is ensure that adequate and appropriate training is provided. In California, state law AB1825 mandates that employers with 50 or more employees provide training for supervisors. That training must occur every two years.

Who Must Experience Sexual Harassment Prevention Training?

Although everyone can benefit from training, supervisors must be trained. That means anyone who has the authority to reward or discipline other employees or deal with grievances, even if the official job title is not supervisor.

What Must Sexual Harassment Training Embody?

The training itself may be delivered on-line, if linked to a trainer who is available to answer employee questions within two days. Another option is to have information delivered by an instructor in a classroom, or in a large format like a seminar, if the trainer follows the regulations laid out by law and uses best instructional practices. There are specific requirements as to who may be a trainer:

  • Attorneys who practice employment law, or;
  • Professors with a post graduate degree or teaching credential with experience in employment law, or;
  • Human resource personnel with at least two years experience designing materials or delivering trainings, dealing with such complaints in a workplace, investigating such complaints, or advising employers or employees in such matters,

The training must encompass information about state and federal laws prohibiting sexual harassment, in addition to remedies for victims of such activity.  There must also be practical case studies of sexual harassment, discrimination, and employee retaliation, and information about how to prevent each.

In the Event of a Sexual Harassment Lawsuit

What if an employee brings a sexual harassment lawsuit? Having complied with the training requirements does not necessarily abdicate the employer of responsibility, but it is a first, minimum step. Other steps employers should take:

  • Have a printed policy defining sexual harassment and company policy as to consequences for such behavior. Discuss it with new employees, and review it on occasion with all employees.
  • Provide training to workers, as well as supervisors.
  • Establish a clear grievance procedure and methods of dealing with complaints. Then keep the information confidential.
  • Investigate all complaints quickly and effectively, and document everything related to the complaints.
  • Protect the victim from the moment the complaint is filed, and correct the issue expeditiously.  Then ensure that no form of retaliation ensues.

[Read more…]

Workplace Drug Testing

drug testingDrug testing has become a routine part of the job in many industries these days. In the past 30 years, in fact, drug testing has risen by nearly 300%. But is such testing accurate? With over 22 million tests being administered in this country every year, even a 5% false positive rate could result in over one million people’s lives being impacted in a negative way. Furthermore, are workers’ rights to privacy in the workplace being protected? If you feel your rights have been violated due to drug testing, an employment attorney may be able to help.

Drug Testing And False Positives

Recent studies indicate that 5-10% of drug tests produce false-positive results. Poppy seeds—even just a teaspoon—can produce a positive test for opioids, even three days after consumption. Prescription antidepressants and cold medicines can indicate amphetamines or benzodiazepine, and HIV medications can indicate that marijuana is in the bloodstream. Even ibuprofen has been connected with positive results for marijuana.

Drug Testing is Intrusive

Testers worry about potential tampering with test samples. That sometimes leads them to observe the employee, or to remove the sample provider’s outer attire and collect the urine sample in a room in which the water has been turned off.  For many, this experience is degrading and invasive.

Once the sample hits the lab, testing may reveal much more than the presence of illegal substances. Some legal drugs may be in the sample, and human error may make the distinction between legal and illegal substances difficult. False positives are a real possibility. Additionally, pregnancy or the genetic predisposition to diseases may also be detected. Sound impossible?  Unfortunately, there are documented cases in which this has occurred.

Systematic Errors with Drug Testing

While no one would argue that a safe workplace is not in in the best interests of employers and employees alike, many employers simply do not have sound practices in place when it comes to drug testing.

  • Random Testing: If the selection process for employees chosen for testing is not truly random, it may be discriminatory. In California, random testing is only allowed under narrow circumstances.
  • Legal Compliance: The law allows for testing of employees under reasonable suspicion of drug use only if objective facts are in evidence. Barring a good reason, singling out someone for testing is not lawful. Employers need to be aware of specific laws carved out by various municipalities or by other authorities in particular industries.
  • Uneven Implementation: One study indicates that just over 20% of respondents conducted drug testing on workers after employment. If policies are not administered uniformly, employees may have reason to suspect discrimination.
  • Medical Marijuana: While marijuana has been approved for medicinal purposes in California, it is still considered a schedule one drug at the federal level. Employers may have a zero-tolerance policy for marijuana, even though it is legal in the state.

[Read more…]

Is Missing Work to Care for A Grandparent Covered by the Family Medical Leave Act?

Family Medical Leave ActCan you use medical leave to take care of your grandmother? Imagine your grandmother has had hip replacement surgery, and is going to require extensive care for the next several weeks. You approach your boss for some time off and are denied. But what about the Family Medical Leave Act (FMLA), you challenge. Does it not provide time off to care for family members? If you find yourself in a confrontation with your employer over the provisions of FMLA, an employment law attorney may be able to assist.

Family Medical Leave Act (FMLA) Provisions

FMLA provides that eligible employees are allowed to take up to 12 weeks of unpaid, job-protected time off with continued group health insurance coverage in certain circumstances.  The part of the law relevant to this situation is pretty explicit: An employee may take the time off of work to care for a spouse, child or parent with a serious health issue. Grandparents are not mentioned. It looks pretty cut-and-dried. Or is it?

Family Medical Leave Act and Parental Relationships

In fact, the FMLA does have some wiggle room when it comes to defining family relationships.   The law actually provides consideration to those who are able to demonstrate a factual, or in loco parentis relationship. This refers to anyone who has essentially served in a parenting role toward the employee. Now, the law does not specify exactly how that parenting role presents, but some factors might include:

  • Providing food, shelter, and clothing;
  • Addressing medical needs and having health insurance;
  • Providing transportation to and from school.

If an employee can establish that his of her grandparent raised him or her, or, at a minimum, met the above criteria, he or she may have a case for in loco parentis status. If, indeed, the grandparent discharged obligations as in a parent-child relationship when the employee was a minor child, FMLA may cover time off of work now for the employee to care for his or her grandparent.

Of note, the in loco parentis interpretation goes even further. The individual who took on the parenting role does not even have to have a legal or biological relationship to the employee.  Simply showing that that person provided financial support and performed duties typically associated with a parent is generally enough.

Employer Rights

Employers are entitled to documentation of any claims of in loco parentis relationships, of course, just as they may seek documentation showing the need for FMLA in other allowed circumstances. That documentation, however, can simply be the employee’s assertion of the relationship with minimal details. [Read more…]

Employee or Independent Contractor?

contractorLet’s say an employer hires you and suggests that you accept independent contractor status rather than being labeled as a regular company employee. To sell the idea, the simple tax form and reduced monthly deductions you would be required to pay are put on the table. What should you do?

Who Determines Independent Contractor Status?

To be clear, employers are not allowed to make this determination willy-nilly, even though there are noteworthy benefits to employers who engage independent contractors. Hiring an individual as an employee has significantly different requirements for employers than hiring that same individual as an independent contractor. The benefits are so tempting, in fact, that employers could face significant penalties when they erroneously classify an employee as an independent contractor. Several government agencies oversee classification controversies, including the Division of Labor Standards Enforcement (DLSE), and the Employment Development Department (EDD).

Employer Benefits of Hiring Independent Contractors

Tax forms and withholding amounts differ, as well as employer tax burdens. Sometimes employers might prefer to have independent contractors in order to avoid payroll taxes, overtime and minimum wage requirements, rest and meal breaks, worker’s compensations insurance, social security, disability insurance, and reimbursements for business expenses.

Are You an Employee or an Independent Contractor?

Because the law does not specifically call out a definition of an independent contractor, court interpretations and agency precedents must be relied upon to make individual determinations.  The Division of Labor Standards Enforcement (DLSE) starts with the presumption that an individual is an employee, and then applies several tests to determine whether or not independent contractor status is appropriate.

The primary consideration is whether or not the employer has the right to control how tasks are accomplished. For instance, an employee performing janitorial tasks may be required to use particular cleaning products, whereas an independent contractor who performs those same janitorial services is simply held to completing the task by whatever means he or she feels appropriate.

Several other factors are considered, including:

  • Whether or not the individual performing the services does so separate from the employer;
  • Whether or not the individual supplies the space, tools, and materials required for the job;
  • Whether or not specialized skills are required for the task;
  • Whether payment is dependent on time or job completion.

Three factors that indicate an employer/employee relationship, regardless of other factors, include:

  • The primary control of the operation lies squarely with the employer;
  • The duties of the worker are key to the success of the business;
  • Detailed supervision of the work is inessential due to the nature of the work.

[Read more…]

Rideshare Operators Are Having Legal Issues

rideshareLyft, Uber, and other rideshare operations have snagged customers from the taxi industry, leaving cab drivers unsettled and anxious about the future of the taxi business. It seems rideshares have upended the transportation industry, netting billions of dollars. But not everything has been coming up roses in the rideshare business. If you drive a cab and believe you have a legal claim against a rideshare company, consulting with an employment attorney might be advisable.

Legal Issues

Believe it or not, despite the huge earnings of rideshare apps, taxi drivers and others have begun to call attention to some serious concerns with the new system, and as a result, these new companies are facing real legal problems:

  • Regulations that differ from city to city: Taxi companies are quick to note that rideshare drivers are not held to the same standards as cab drivers. Some localities have responded by filing lawsuits alleging deceptive and unfair business practices because rideshare drivers do not adhere to the same regulations as cabbies. In some cases, the regulations of note regard commercial drivers license rules, car inspection expectations, insurance laws, licensing fees, and uniform rates.
  • Airports are losing money on fees and permits in some cities: Airports typically collect revenue through permitting, and some airports are now banning rideshares. In San Francisco, in fact, airport officials were even arresting rideshare drivers for trespassing. It is looking like regulation is going to have to come down quickly in order to avoid more of this type of issue.
  • Insurance is not always verifiable: Despite claims of million-dollar liability policies, several states have warned passengers that they may not be covered in the event of an accident.  Instances involving limited coverage have occurred here in California.
  • Company cars do not necessarily meet ADA standards: When the vehicle you call up on your app is not wheelchair friendly, it can be a real problem. Disabled patrons are denied service because they offer no alternatives for mobility-impaired persons. That means they are not meeting the guidelines established in the Americans with Disabilities Act.
  • Drivers with criminal backgrounds slip through the cracks: In California, over 20 rideshare drivers with felony backgrounds that were quite serious were discovered on the road in 2016.  That led to stricter rules regarding background checks, with heftier fines for companies that hire sex offenders and violent felons or terrorists.

Rideshare Taking Unfair Advantage

The rideshare market is increasing globally, largely because the supply of drivers is endless, since virtually anyone can become a rideshare driver. That fact, combined with unfair regulation discrepancies compared to cab companies, has created a disparity that has left cab drivers wanting more of the transportation pie. [Read more…]


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 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.