Reasonable accommodation issues are tough.  Employees often want a lot of things that are not justified by a doctor’s note, and appropriately documenting the interactive process can be an uphill battle.

If you are in the LA area and have burning questions about how to reasonably accommodate employees under the ADA and California’s FEHA, then please come hear me speak for the LACBA on October 27th.  Topics for discussion will include:

  • Disability Leave:  How long is too long?  How long do you have to keep the job open during the leave?
  • Interactive Process Communications:  If there is no documentation, can you prove they occurred?
  • Undue Hardship:  Is it ever too hard to accommodate?  How expensive is too much?
  • Assistive Technology:  How does new technology change what’s reasonable? (i.e., is everyone entitled to a headset and a standing or walking desk?)

If you can’t make it, look for a blog post next week on tips discussed and lessons learned.

I have been conducting harassment prevention training for California clients since AB 1825 became effective back in 2005. After presenting what must be hundreds of sessions in the last decade, I am always on the look-out for new topics to discuss, and new hypotheticals to present, and sometimes the universe just cooperates with me. Watching the second Presidential debate last weekend was one of those experiences.

Young businessman arguing with sad stressed coworker
Copyright: vadymvdrobot / 123RF Stock Photo

Since 2015 (AB 2053), California law has required employers to train management on abusive conduct (also known as “bullying”). While bullying is not yet illegal, it should be against most employer policies, and should lead to discipline for employees who violate those policies.

Bullying is defined as workplace conduct, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. The law goes on to say that bullying may include:

  • Derogatory remarks, insults, and epithets;
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
  • The gratuitous sabotage or undermining of a person’s work performance.

So let’s consider the following hypothetical:

A group of managers is in a team meeting where each person is supposed to present on their enumerated topics to a group of colleagues. When one manager is talking, the other one (who is physically larger) is pacing behind, making faces, and making noises (something between a snort and a grunt). The hands are gesturing and fingers pointing. The manager pacing also repeatedly interrupts the colleague, either with snide comments, jokes (which get laughs or cheers), or insults. Is this bullying?

Would a reasonable person find this conduct to be hostile? Offensive? Unrelated to an employer’s legitimate business interests? Is this verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating? Absolutely.

In fact, many employment attorneys and HR professionals I know were physically uncomfortable while watching the debate, at least in part because we were witnessing conduct that no reasonable employer could tolerate. While we certainly cannot require free speech to be polite or politically correct, we certainly can and should agree that this type of bullying would not be okay in any workplace.

California’s Fair Pay Act, already the broadest in the nation, has now been expanded in two key aspects:

Pay day
Copyright: rawpixel / 123RF Stock Photo

First, the Governor approved SB 1063, so that the Fair Pay Act now protects against race-based disparities in pay.  Specifically, employees who perform “substantially similar work” under similar working conditions, must be paid equally, unless the employer can demonstrate that the wage differential is based on either:

  • A seniority system;
  • A merit system;
  • A system that measures quality or quantity of production; or
  • A bona fide factor other than sex, race or ethnicity (such as education, training, or experience).

Second, the law already requires that each factor must be relied on reasonably and account for the entire wage differential.  That part of the Labor Code has now been amended by AB 1676, to clarify that “prior salary shall not, by itself, justify any disparity in compensation.”

Clearly, the idea here is that initial wage differentials in hiring become compounded over the years if each subsequent employer relies on that prior wage rate.  Why pay someone $50k, when you know she (or now he) would be happy with $40k based on her/his current salary?  Going forward, the applicant will need to be paid what the position is worth, not just that she/he will take based on prior salary level.  Sounds fair, right?

Well, sounding fair and ease of implementation are two very different things.  I can only imagine the questions that will arise for employers who try to justify why one applicant (someone they really want to hire) can’t be paid a premium without bumping up everyone else in a substantially similar position.  And as we have pointed out here, the burden of demonstrating fairness is entirely on the employer, and here, that logic really plays no role.

Quite frankly, what the Fair Pay Act really requires is an overhaul of hiring practices for HR professionals in California.  Gone are the days when management can exercise discretion to negotiate salaries based on an applicant’s prior salary history, or the applicant’s negotiation skills.  Whether that is a good or bad thing for business in California remains to be seen.


We posted before on AB 1732, which Governor Brown signed yesterday. This law prohibits businesses and government entities from labeling any “single-user toilet facility” as either “male” or “female.” It defines “single-user toilet facility” as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”

The bill’s sponsor, Assemblyman Phil Ting (D-San Francisco) issued a statement that:

Copyright: nu1983 / 123RF Stock Photo
Copyright: nu1983 / 123RF Stock Photo

“California is charting a new course for equality. Restricting access to single-user restrooms by gender defies common sense and disproportionately burdens the LGBT community, women, and parents or caretakers of dependents of the opposite gender. Bathroom access is a biological need. This law will ensure more safety, fairness, and convenience access for everyone.”

There’s no word yet on whether users of “single-user toilet facilities” will be statutorily required to put the seat down. The law takes effect March 1, 2017.

There’s a new twist in the ongoing soap-opera like saga surrounding the Los Angeles Citywide Hotel Worker Minimum Wage Ordinance.  The Hotel Associations that opposed the Ordinance have now dropped their two-year law suit to stop it.

52101162 - closeup of the fist of a young caucasian man on a document with the text dismissed, placed on a rustic wooden table

As we reported here and here, the Ordinance had an effective date of July 1, 2015 for hotels with 300 or more rooms and a July 1, 2016 effective date for hotels with 150 or more rooms.  While preparing for and actually implementing the requirements in the Ordinance have been grueling and costly for the Los Angeles hospitality industry, I’m guessing the mounting costs of the appeals process was simply compounding the effect.  Originally, the hospitality industry argued that the Ordinance would force hotels to unionize, but that claim did not appear to hold water.  Plus, now that California increased its minimum wage, and with so many local minimum wage ordinances popping up (as noted here), this LA Hotel Ordinance seems more mainstream (even though many of its requirements are not).

While affected hotels, vendors and restaurants are working out the kinks in compliance, we have yet to see any cases brought under the Ordinance.  Since we don’t want you to be the test case, take a look at some ideas for compliance.

California’s legislature has passed two new statutes that increase the protections for employees arbitrating workplace disputes.

SB 1007, which passed on September 1, 2016, gives any party to arbitration proceedings “the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record.” I routinely advise employers to have depositions and hearings reported since it makes it easier to cite to the record when there’s a … um … a record.

The other new statute, SB 1241, passed on September 9, 2016. This statute says that arbitration provisions can’t require California employees to arbitrate their claims in other states or require arbitrators to apply other state’s laws.  I think that, even under prior law, such requirements would have been deemed unconscionable, especially since courts have been vigilant in insisting that employees not be required to bear expenses or burdens in arbitration that exceed what they’d be required to bear in court actions. We expect the governor to sign both measures. [Update: He signed SB 1241.]

If you want to see our analysis of the pros and cons of workplace arbitration from the employer’s perspective, check out my recent guest post for Continuing Education of the Bar ● California (a program of the University of California and the State Bar of California) on their CEBBlog.

We’ve written extensively about mandatory workplace arbitration. But it was still an honor when CEB, a program of the University of California that is cosponsored by the State Bar of California, asked me to write a guest post for their CEBlog on the pros and cons of implementing such a program. You can read that post here. This is an issue that every employer should give serious thought to.

Copyright: maurus / 123RF Stock Photo
Copyright: maurus / 123RF Stock Photo

‘Tis the season for new employment laws in California.  The governor has until September 30th to sign or veto many pending bills on his desk.  So, this blog may be the first of several updates in the coming weeks.

Issues related to domestic violence, sexual assault, and stalking are all over the news.  While existing law provides protected time off to victims of domestic violence, apparently many workers and employers are not aware of those rights.  According to a study by the Legal Aid Society Employment Law Center, nearly 40% of survivors in the state reported being fired or fearing termination due to intimate partner violence.

To address this issue, on September 14th the governor signed AB 2377 a bill that requires employers of 25 or more to provide notice to employees of their rights to take protected time off for domestic violence, sexual assault or stalking.  This new bill requires employers to “inform each employee of his or her rights” upon hire and at any time thereafter upon request.  The Labor Commissioner will develop a form for these purposes and publish it by July 1, 2017.

Copyright: art1980 / 123RF Stock Photo
Copyright: art1980 / 123RF Stock Photo

Until then employers should have a provision in their handbook setting forth existing rights to take time off for the following issues that arise from being a victim of domestic violence, sexual assault, or stalking, including:

  • To seek medical attention for injuries;
  • To obtain services from a domestic violence shelter, program or rape crisis center;
  • To obtain psychological counseling;
  • To participate in safety planning and take related actions (such as temporary or permanent relocation).

Employers should also make sure that managers understand employee rights to such time off (and to use available vacation and/or sick time for such purposes), and are trained to forward such sensitive issues to Human Resources to address any employee concerns about retaliation for actually taking the time to address such serious personal matters.

It’s been barely two months since Tyreen Torner compiled a chart summarizing the paid sick leave laws of California and six cities (San Francisco, Oakland, Emeryville, Los Angeles, San Diego, and Santa Monica). Well, she has now updated the chart, which you can download here: CA State and City Paid Sick Leave Laws. Is Tyreen’s work done? Hardly! Berkeley has enacted its own paid sick leave laws that take effect in 2017. Other cities will also be jumping on the bandwagon and it will be time for another update. Sorry Tyreen!

Copyright: olivier26 / 123RF Stock Photo
Copyright: olivier26 / 123RF Stock Photo

Yesterday, we provided you a copy of our National Survey on Marijuana Laws and Regulations. Because we’re still feeling generous, today we’re providing our 50-state survey on how the laws on restrictive covenants in the employment context vary from state to state. This survey is a joint effort between Fox Rothschild Labor and Employment and Securities Industry practice groups.

Where will this generosity end? That remains to be seen!

Copyright: studiograndouest / 123RF Stock Photo
Copyright: studiograndouest / 123RF Stock Photo