Header graphic for print

California Employment Law

Commentary on Issues Facing California Employers

Judges, Juries, and Arbitrators Are Looking for One Thing: Fairness

Posted in Advice & Counseling, Employment Litigation

While I certainly don’t want to downplay the importance of employers following the law, one rule will keep employers out of trouble in most situations: be fair.

Did the employer gather all available information before making a decision? Did the employee know what was expected of him or her? Were the expectations reasonable? Was the employee given specific feedback and a chance to improve? Were like cases treated the same? Did the decision-maker have reason to be biased?

If you can show that the decision was fair, it’s often much easier to show that it was legal. If you can’t, it’s an uphill battle.

Clients Want Predictability. Can Employment Lawyers Give It to Them?

Posted in Advice & Counseling, Employment Litigation

We all know that clients don’t like surprises. In litigation, they want to know what matters will cost and the likelihood of an adverse outcome. For lawyers to add value then, we need to figure out ways to control or account for a range of variables.

Today’s clients don’t just want lawyers who get good results. They want lawyers who can deliver those results efficiently and on budget. That was the message from a seminar I attended this morning by Timothy B. Corcoran, who writes Corcoran’s Business of Law blog.

The laws change. Judges make unpredictable rulings. Opposing lawyers take unreasonable positions. (Not me, obviously.) So maybe we can’t precisely quantify every variable that impacts a litigation budget.But we need to get better at telling clients what to expect and not waiting for the next bill to let them know if our predictions were off. After all, law firms expect their vendors to deliver at the budgeted price. Why should our clients expect less from us?

Should Your Settlement Agreements Have a No-Rehire Clause?

Posted in Advice & Counseling, Employment Litigation, Retaliation

For years, employers settling with former employees have included a clause saying that the employee would never reapply and was not eligible for rehire. The rationale is obvious. After litigating, sometimes for years, no employer wants to bring the employee back and potentially start the process over.

However, there was never clear authority saying those clauses were permissible. They could arguably be retaliatory. I’m refusing to rehire you because you sued me. Protected activity, adverse action, causal connection – the elements of a retaliation claim.

Now, the Ninth Circuit is asking whether the no-rehire clause is also an unlawful restraint of trade. California is very protective of employees’ rights to compete. Business & Professions Code sec. 16600 states quite simply that:

Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.

In Golden v. California Emergency Physicians Medical Group, et al., a doctor refused to finalize a settlement containing a no-rehire clause. He argued that his former employer (CEP) was a major player in his field with plans to grow by acquiring other practices. As written, the provision would not only preclude him from applying to practices affiliated with CEP, but to resign from practices with no such affiliation if CEP later acquired them.

Two judges on the panel concluded that the settlement agreement was a contract restraining plaintiff from engaging in a lawful profession, trade, or business. They decided to send the case back to the trial court to decide if the restraint was “substantial.” A dissenting judge thought the clause was permissible and, if it was later used for improper ends, should be challenged at that time. So more guidance may be forthcoming.

Here’s your “takeaway”: The law is still developing here. More risk-averse employers may want to avoid no-rehire clauses for the time being. Sometimes, however, litigation creates so much antagonism, that the employer may find the risk of the clause being held unlawful to be more attractive than the risk of having to potentially rehire the person. After all, rehiring someone who’s already sued you is fraught with its own risks.

NLRB Has No Problem with Employee Calling Boss a ‘Nasty MF’

Posted in Advice & Counseling, Harassment, Labor Law

Warning: This post contains language that many working outside of the NLRB will find offensive.

The National Labor Relations Board recently ruled that an employer acted unlawfully when it fired an employee who said on Facebook that his boss was a “nasty motherfucker” and “Fuck his mother and his entire fucking family.” A majority of the 3-member panel concluded that the language was sufficiently tied to an upcoming union election to constitute protected activity. A third member dissented, saying that such vulgar and offensive attacks on the manager and his family do not fall within the protections of the National Labor Relations Act.

Takeaways:

  • Whether a workplace is unionized or not, the Board is taking an increasingly active role in trying to dictate how employers run their businesses.
  • If you permit vulgarity in the workplace, it’s hard to discipline employees because you don’t like the message.
  • If you want to discipline an employee for vulgarity, you need to consider the context. If employees can claim that they were protesting poor treatment by management, the NLRB may be inclined to scrutinize management’s response.
  • If the NLRB continues its activist trend, employers are completely fu…, totally scr…, going to face daunting challenges.

Law360 was kind enough to post the decision (pdf).

6 Things You Should Never Say When Investigating Harassment Claims

Posted in Advice & Counseling, Employment Litigation, Harassment, Retaliation

Harassment has been in the news a lot lately. How a company responds to an employee complaint is critical. If your company receives a complaint, here are some things you should never say:

  1. I will keep what you tell me completely confidential. No you won’t. You’ll keep it as confidential as circumstances allow. You’ll only disclose information on a need-to-know basis. But you can’t conduct an effective investigation without telling the accused what the complainant said and vice versa.
  2. I’m really busy now. Can we talk about this in a couple days? A good plaintiff’s attorney will hang you with a comment like that. You might as well say, “Preventing harassment isn’t really a big priority for this organization.”
  3. Because of privacy concerns, I can’t tell you what steps we’re taking. You should inform the complaining witness of what steps you’re taking throughout the investigation. They have a right to know. Also, you don’t want them concluding that they need to go talk to a lawyer to get the company’s attention.

  4. To protect you from retaliation, we’ll move you to this different department/shift/location. That’s not protecting someone from retaliation. That IS retaliation.
  5. It’s “he said/she said,” so we can’t do anything. Most harassment complaints involve one person’s word against another. That doesn’t absolve the company of its duty to weigh the facts and make a conclusion.
  6. I’ll do the investigation myself. How hard can it be? When you see a giant harassment verdict, it usually has more to do with what the employer did in response to the complaint than what the accused harasser did. If the complaining witness brings a claim, every step of the investigation will be scrutinized. That’s why a prompt, fair, thorough investigation is the best way for an employer to protect itself once issues arise.

Five Lessons For Employers From the Ellen Pao Verdict

Posted in Advice & Counseling, Discrimination, Employment Litigation, Harassment, Retaliation

As an employment litigator and the co-chair of my firm’s Women’s Initiative, I have been particularly interested in the press surrounding the claims brought by Ellen Pao against her former employer.  As explained in a prior post, Pao claimed that she was harassed by male colleagues, and when she complained about that harassment to Human Resources, was retaliated against and ultimately terminated.  She brought claims of sex discrimination and retaliation, and a San Francisco jury vindicated the employer and dismissed her claims.

This saga illuminated several of the themes that I often address with clients when conducting harassment prevention training.

First, to be unlawful, conduct must be “severe or pervasive,” unwelcome, based on sex, and have an adverse impact on the work environment.  As of this year, harassment prevention training must cover abusive conduct aka “bullying” (defined as conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests).  Put simply, just because the conduct isn’t unlawful, doesn’t make it right.

Second, retaliation claims are very easy to bring and very hard to defend.  While the employer here was ultimately successful, keep in mind that it took a 24 day jury trial for that vindication.  Quite often retaliation claims are fact intensive and not susceptible to summary judgment or prompt resolution.

Third, even if harassment claims fail, it is quite possible for a retaliation claim based on a meritless harassment claim to succeed.  And unfortunately, many managers do retaliate against employees who complain, albeit sometimes inadvertently.  In my training, I always include examples of a manager who was frustrated with an employee who complained about something, and takes actions that could be construed as retaliatory (such as ignoring pleas for help, letting others give the complaining employee a hard time, and/or directing opportunities elsewhere). Managers need to be trained to not only avoid retaliation, but also the appearance of retaliation.

Fourth, defending a harassment, discrimination, or retaliation claim can be a very high hurdle for employers, who need to essentially justify their actions by picking apart the plaintiff’s behavior.  That requires a very delicate balance.  In reviewing how Pao was expertly cross-examined, I cheered for the female attorney who scored such good points for her client.  At the same time I was saddened for women who honestly believe they are stepping up to expose institutional problems that others are too afraid to raise.

And finally, the press accounts of the Pao trial indicate that there is unconscious bias in the workplace.  Semantics matters, such as referring to a woman as someone with “sharp elbows” – would anyone refer to a man that way?

All in all, there are lessons here for everyone.  Let’s just hope employers (and employees), female (and male), take a minute to digest them.

 

What Do You Do When An Employee Blames Bad Behavior on a Disability?

Posted in Disability Discrimination, Discrimination

For years we’ve been following legal developments on how employers deal with workers who attribute bad behavior to a disability. (We wrote about it here and here and here, for example.) Last summer, we wrote about the 9th Circuit’s decision in Weaving v. City of Hillsboro, involving the termination of a police sergeant for bullying and intimidation. Weaving, who blamed ADHD for his bad behavior, sued and recovered over $630,000 in damages.

The court of appeal reversed. The court distinguished between being able to interact with others (which is a major life activity) and being able “to get along with others” (which presumably is not). According to the court, “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile work environment for their colleagues.”

Weaving asked the Supreme Court to take the case and last month it declined to do so. As a result, the rules for when employers can discipline employees for misbehavior that they attribute to a disability remain unclear.

The best things that employers can do to protect themselves in these situations are:

  1. If there’s an identified disability, engage in a thorough, well-documented interactive process;
  2. Err on the side of protecting workers from bullying, threats, or worse, and
  3. If you’re in California, understand how the state interprets these rights more broadly than federal law does.

CA Employers Not Required to Accommodate Single-Member Made Up Religions

Posted in Discrimination

After the California Department of Corrections disciplined corrections officer Marshel Copple, he sued it for failing to accommodate his religion. What religion, you ask? “Sun Worshipping Atheism.” Never heard of it? Maybe that’s because Copple, who created the religion, is its only member. Its core beliefs include “rational worship of the sun,” getting at least 8 hours of sleep, eating and drinking “when you need to,” and getting fresh air.

The dispute arose when Copple refused to work overtime. His employer told him, as it had when he applied, that overtime was part of the job. Copple responded that working overtime would interfere with his practice of his religion (the tenets of which he posted on the internet the day before). He later resigned and sued the Department of Corrections for religious discrimination. The trial court tossed the case out on summary judgment and the appellate court affirmed.

Sadly, the decision (which you can read here: Copple v. CDC Opinion) was not based on the principle that you can’t make up a religion which you’re the only member of and demand to be accommodated. The court, in fact, took pains to note that it was “not judging the intrinsic value of plaintiff’s beliefs or” his sincerity. Instead, it relied on the fact that Sun Worshipping Atheism (like veganism) does not express a full set of beliefs and there are no rituals, services, holy days, or the like. It wasn’t religious discrimination because Copple’s personal philosophy didn’t rise to the level of being a religion.

Takeaways?

  • For employers, understand that the term “religious” in “religious discrimination” can extend beyond any belief system you’ve ever heard of. Get qualified advice before denying an accommodation request.
  • For employees, if you’re making up a religion that you want to be taken seriously, it’s probably best to leave “Atheism” out of the name.

Copple should look on the bright side. A lot of popular religions start off with tales of persecution and oppression. In a few hundred years, his could really take off!

The Champions of Diversity Challenge – Support the Bay Area Urban Debate League

Posted in Articles

The Bay Area Urban Debate League (“BAUDL”) is a debate mentoring program that currently serves 14 Bay Area schools and over 400 students. Studies show that these programs improve literacy, GPA, graduation rates, and provide a host of other direct benefits to the participants, their schools, and the community.

Fox Rothschild LLP is proud to be among 13 law firms competing in BAUDL’s “Champions of Diversity” fundraising campaign. The initial round is this week, ending Friday, March 27th, during which the firms will compete to see which one can raise the most money and the most money per attorney in their Bay Area office(s). There will then be a second round among the top three finalists. The winner gets a full-page ad.

You can find updated results here and, if you’re moved to give, you can do so on behalf of your my favorite law firm here. Every bit helps and it’s a very worthy cause.

Top Ten Take-Aways from the Cornell HR in Hospitality Conference 2015

Posted in Advice & Counseling, Discrimination, Employment Litigation, Wage and Hour

I just returned from the Cornell HR in Hospitality Conference in Las Vegas with my partner Carolyn Richmond.  I participated in the Executive Summit and shared ideas with some of the most progressive minds in the hospitality industry.  Here is my top ten list of take-aways:

  1.  Once a year performance reviews are backwards looking, and millennials (soon to be 50% of the workforce) want consistent feedback.  As one panelist put it “you can’t drive looking through a rear view mirror.”  It is time to re-think how you provide feedback.
  2. Similarly, once a year employee engagement surveys can have limited value, especially when the management team has learned how to manipulate results (such as by scheduling the employee appreciation party right before the survey goes out).  Plus, if you aren’t going to fix the issues identified in the survey, conducting one can do more harm than good.
  3. While California law still allows employers to terminate (or not hire) for a positive marijuana test – be careful – if the drug is taken for a disability, the applicant/employee could assert a disability claim.  Do you want to be the test case?  Most employers do not.
  4. Do not assume your paystubs are compliant; paystub class actions are here to stay so audit them in each jurisdiction.
  5. When negotiating vendor agreements (an issue I have blogged about before), add a provision about ACA compliance and make the vendor take full responsibility for it.  Plus, specify that you are not joint employers, and the vendor will indemnify you for any assertions of joint employment status.
  6. Scrutinize your background check vendor, and carefully weigh the risks of getting the process wrong versus the risk of a negligent hiring claim.  Some jobs and industries warrant (or require) background checks, but many do not.
  7. Do not assume that pay equity exists just because employees with the same job title are in the same “salary band.”  If all women are at the bottom of the band, then you will need to justify why or rectify.  Moreover, the rationale that the men were better negotiators upon hire is not a viable defense to a pay equity claim.
  8. Be careful before you offer to pay a departing employee’s Cobra as part of a separation agreement; you could inadvertently mess up their ability to get coverage on the exchange.
  9. When hiring part-timers (who may not work enough hours to get health coverage), specify in the offer letter that they will be working “variable hours.”
  10. While documentation of performance deficiencies is still critical to defending claims, often it makes sense to move people out quickly and pre-empt a retaliation claim; as a presenter put it “be slow to hire but quick to fire.”