E-Book Cover: Employment Compliance in the Age of Legalized MarijuanaThough cannabis is illegal under federal law, at least 30 states and the District of Columbia have legalized cannabis for medical use and nine states, as well as D.C., have legalized it for recreational use—a dichotomy that presents a unique and complex challenge for employers. In a new e-book, Fox attorneys Joseph A. McNelis III, Lee Szor, William Bogot and Joshua Horn provide an overview of federal and state marijuana laws, discuss specific aspects of the employment relationship affected by the legalization of marijuana in certain states, and offer practical guidance for employers on how to navigate this new and developing area of the law.

We invite you to download a PDF of the e-book.

Maybe Governor Jerry Brown read my January blog post on references because, last week, he signed AB 2770 into law.  Effective January 1, 2019, employers are protected by an expanded privilege when giving an employment reference.  The privilege protects employers from defamation claims when advising a prospective employer that the applicant was the subject of a credible sexual harassment claim.

The claim must be “without malice” and based on credible evidence in order to be covered by the privilege.

Employers are currently protected from non-malicious references regarding the job performance or qualifications of an applicant for employment. Existing law also authorizes an employer to answer whether or not the employer would rehire an employee.  However, many employers don’t use their privilege to speak out against bad actors in their workplace. The primary concerns in opting not to give a substantive reference is fear of a defamation lawsuit or tortious interference with a business opportunity claim under Labor Code section 1050.  In failing to give a truthful reference, we have created a system where alleged harassers (and other terminated employees) get to move on and become someone else’s (client’s) problem.

Now, employers who want to ensure alleged harassers don’t continue their bad behavior at their next employer can feel more secure in speaking up about employee performance and policy violations when the next reference check call comes in.

Since this is a blog about California employment law, we don’t often write about immigration. Sure, we define California employment law broadly enough to include stuff about gorillas and monsters. But usually not so broadly to include immigration. That’s covered beautifully by our friends at Immigration View.

Still, there are some California employment law aspects of last week’s ruling in United States of America v. State of California that deserve attention. In that case, the federal government is arguing that certain state laws impermissibly intrude on the federal government’s authority over immigration. The US sought a preliminary injunction barring enforcement of a number of those provisions, arguing that immigration is exclusively a federal issue. California opposed the injunction arguing that it was well within its rights to regulate employers. (And we know how California loves to regulate employers!)

Judge John A. Mendez of the US District Court for the Eastern District of California granted the injunction in some respects, but denied it in others. For example, he upheld the state’s right to inspect and report on facilities where immigrants are detained. He also upheld a requirement that companies notify workers within 72 hours if the employer learns that ICE is inspecting its Form I-9s.

Two aspects where he granted the injunction are noteworthy. First, Assembly Bill 450, among other things, prohibits employers from consenting to an immigration enforcement agent entering nonpublic work areas or accessing employee records. The court was troubled by the position this puts employers in. On the one hand, the employer has a federal agency seeking access to its workplace. On the other, you have the state saying it’s illegal to consent to that search. The court found these two positions incompatible and enjoined enforcement of that portion of the law. 

The court similarly refused to enforce portions of California Labor Code § 1019.2, which imposes an up to $10,000 civil penalty on employers who re-verify an employee’s eligibility to work in the US when not required by law to do so. Again, it places employers in an unreasonable position. On one hand, they have a continuing legal duty not to employ unauthorized immigrant workers. If they believe that a worker has become ineligible to work in the US, they’re obligated to stop employing that person. At the same time, if they check to see if they’re complying with that federal requirement, the state can subject them to penalties. The court granted the injunction against enforcement of that provision, as well.

Knowing that he won’t have the last word on some of these issues, Judge Mendez spells out his reasoning in considerable detail. He ends his order by joining “the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.”

A few days ago, many companies celebrated ‘Take Your Dog To Work Day’.  At an increasing number of companies, employees take their pets to work every day.  At other companies, in the ever-changing quest to be the cool kid on the block offering the latest and greatest benefits, the newest perk appears to be puppy playtime.  Google, Aetna and Intel are among the companies that have partnered with a non-profit that brings trained pets into the workplace to reduce employee stress levels for a few hours a week, while Amazon, Google, Ticketmaster, Etsy and Salesforce allow employees to bring their pets to work on a routine basis.

Photo credit: Bruin Suddleson

Pets in the workplace has been a hot topic in various forms for a few years. The issue of therapy or service dogs specifically garnered attention from the DFEH in its 2016 amended regulations requiring businesses to individually assess whether allowing a support animal at work is a reasonable accommodation for a disabled employee. The regulations define a “support animal” as “one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.” Anecdotally, we’ve also had an increase in hospitality clients who have questions about service dogs in restaurants and hotels. Given the media coverage and public trend of pet-friendly workplaces, businesses may face an uphill battle in establishing that allowing a support animal at work would be an undue hardship, which is the threshold for denying an accommodation. However, because I’m an employment lawyer, before opening your doggy doors to your employees’ four-legged friends, consider the arguments against a pet-friendly workplace which include potential liability for asthma-related disabilities, stress-related disabilities for those who may have a fear of pets, and even potential workers’ compensation claims for pet-related injuries. If you’re considering adopting a pet-friendly workplace culture, be sure to consider these risks and to implement thoughtful guidelines around the privilege to bring a pet to work, whether as an everyday occurrence or as a reasonable accommodation.

Do you want to know the secret of achieving pay equity in the workplace (at least in the long term)?  Well, it is really about the dads. Yes, that’s right.  The more paid time off given to fathers, the more likely it is the a company will achieve long term pay equity.  Why you ask?

Because when time off for babies and kids becomes a parental issue, and not a women’s issue, then women stop being punished (whether directly or indirectly) for taking time off to give birth and raise kids.  And if you are wondering if women really are set back by being pregnant or active parents, then read this recent article in the New York Times.  Women are set back.  Having kids can be a career killer. There is a documented motherhood penalty.

This is why parental leave policies, as opposed to maternity and paternity leave policies, are the wave of the future.  If your business has not revised its time off policies for all parents (whether female/male, gay/straight, birth parent/non-birth parent), then it is time to consider it.  Otherwise, you just could be the next company in the news (and not in a good way).

Oh, and by the way, having a policy is one thing.  But actually encouraging dads to use it is (instead of punishing them for it, whether overtly or covertly) is another critical step.

Happy father lying on sofa holding baby girl and playingIn honor of Father’s Day (albeit a week late), let’s hear it for the dads! Especially if it ultimately helps the moms get paid the same as those dads!

Whenever a celebrity dies, everyone glorifies their accomplishments. So the eulogies for Koko the talking gorilla aren’t surprising in the least. But those eulogies tend to overlook that Koko’s many accomplishments include having been the first gorilla to be accused of sexual harassment.

As we explained in the story linked to above, two women sued the Gorilla Foundation in 2004 claiming that they were pressured to expose themselves to “indulge Koko’s nipple fetish.” Is it just me or does it sound far-fetched for someone to claim to be sexually harassed by a gorilla? The case settled for undisclosed terms.

Rest in Peace, Koko. It would have been an honor to defend you. I’m sorry that you never got your day in court. Were you even deposed?

Tyreen Torner has again updated this Chart Summarizing CA State and Local Paid Sick Leave Rules. It summarizes the Paid Sick Leave laws for California, San Francisco, Los Angeles, San Diego, Oakland, Berkeley, Santa Monica, and Emeryville.

Man lying with a broken leg in a cast on a sofaAre you curious about how the accrual cap rules in Oakland (where the Golden State Warriors are today celebrating their third NBA title in four years) compare to the accrual cap rules in Los Angeles (where the Lakers weren’t even the champions of LA)? Just look it up. It’s all there. Right at your fingertips. Thank you Tyreen!

To keep employers guessing, not only does the state minimum wage increase every year, but many cities do as well. Currently, California’s minimum wage is $11 per hour (or $10.50 for employers with up to 25 employees).

Red balloons on blue sky spelling "Guess"While state minimum wage goes up in January, some cities like to keep things complicated by increasing their minimum wage as of July 1st.  One such city is Santa Monica, where the minimum wage goes up to $13.25 on July 1st.  The $13.25 rate also applies to Los Angeles as of July 1st for employers with 25 or more employees; those with under 25 employees must pay $12.00.

To keep things really confusing, certain hotel workers in Santa Monica and Los Angeles get even higher rates; on July 1st hotel workers in those cities get an increase to $16.10 per hour.

Yes, California likes to keep employers guessing.  Thankfully you have this blog to keep the guesswork out of your wage and hour compliance.

 

In Epic Systems v. Lewis, the U.S. Supreme Court recently approved the use of arbitration agreements that include class action waivers. So this seems an opportune time to reassess the pros and cons for employers of using mandatory workplace arbitration agreements.

The Pros

  1. There are no runaway, emotion-fueled jury verdicts. Arbitration awards can be high, but they tend to be more closely rooted in reality.
  2. The procedures (including discovery) are more streamlined than cases in court.
  3. Although plaintiffs can still publicize what they want, arbitrations are generally more private than court trials.
  4. The cases settle more cheaply. 
  5. The cases usually resolve more quickly in arbitration than in court.
  6. The attorneys’ fees are usually lower.
  7. If you win, the other side’s opportunity to appeal is very limited.
  8. It is now clear that you can require employees to waive the right to pursue class actions.

The Cons

  1. It’s easier for unrepresented parties to bring weak claims.
  2. Forum and arbitrator costs are higher and, in California and many other jurisdictions, the employer bears the vast majority of those costs.
  3. While Epic Systems resolved the issue of class action waivers, the California Supreme Court has said “no” to mandatory arbitration of Private Attorney General Act claims. Eventually, the U.S. Supreme Court may need to address that issue. Also, there have been repeated efforts in Congress to outlaw the practice.
  4. Employees generally don’t like losing access to jury trials. Lately, there have been concerted attempts by some to argue that arbitration agreements protect sexual harassers. However, any remedy that an employee can recover in court against a harasser is available to the same extent in arbitration.
  5. If you lose at arbitration, your opportunity to appeal is very limited.
  6. It can be harder to get cases out on dismissal or summary judgment.
  7. While it hasn’t been my experience, some say that arbitrators tend to “split the baby.” (How I hate that cliche! I don’t like “throwing out the baby with the bath water” either. Leave the poor baby alone!)
  8. As our friends at Wage & Hour – Developments and Highlights point out, plaintiffs’ lawyers who previously filed class actions may now start filing multiple individual arbitrations for wage and hour violations, which could subject employers to burdens and expenses that rival class actions.

The Deciding Factor:

Having tried and arbitrated dozens of cases for employers over the years, I believe that – for most employers – the pros outweigh the cons. Most cases end up settling and cases subject to arbitration tend to settle more cheaply. The fact that there’s no risk of an emotion-fueled jury verdict changes the whole settlement calculation. Employees and their attorneys can’t base their negotiation position on the fact that, if they just get before a jury, they have a shot at a windfall. So if you’re an employer who doesn’t have arbitration agreements with your workers, seriously consider whether it’s time to develop one.

Employers are still reeling from last week’s decision in Dynamex Operations West, Inc. v. Superior Court, in which the California Supreme Court said that employers (and even a state agency that protects workers) were using the wrong standard to distinguish employees and independent contractors under the state’s Wage Orders. A month before that, in Alvarado v. Dart Container Corporation of Californiathe same court announced a more employee-friendly way of calculating overtime for employees who receive bonuses.

These cases share two things. First, they put big smiles on the faces of lawyers who file wage and hour class actions. Second, both cases premised their decisions in part on California’s goal of protecting workers. In Dynamex, the court relied on the “general principle that wage orders are the type of remedial legislation that must be liberally construed in a manner that serves its remedial purposes.” The court in Alvarado noted that one of the “overarching interpretive principles” to guide its analysis was that “the state’s labor laws are to be liberally construed in favor of worker protection.” No mention was made of the fact that California workers have more far-reaching protections than workers in any other state.

While Dynamex and Alvarado provide examples from the last 45 days, the courts have been interpreting employee protections liberally for many decades. During that time, workers’ rights keep expanding further and further. I am certainly not suggesting that workers should not be protected from unscrupulous employers. But does anyone pay attention to the principle that employers who make every effort to follow the law shouldn’t be subjected to potentially ruinous litigation exposure each time the courts reinterpret the law in a new direction?