The #MeToo movement is two years old this month, and what a profound cultural shift it has been.  Workplace conduct that just a few years ago was tolerated, ignored, overlooked, and even condoned, has now been forbidden.  The list of top executives, journalists, celebrities and others whose careers and reputations have been decimated gets longer each week (sometimes it feels like each day, depending on the news cycle).

I reflected on these changing norms in a Daily Journal article for its special #MeToo edition on October 17, 2019.  You can read it here.  The biggest joy of publishing in an old-fashioned newspaper is that you can make a photocopy for your parents (including a retired judge father), who think it is pretty big deal.

Happy reading, and as I say at the end of each sexual harassment prevention training, please behave!

The #MeToo movement started more than a year and a half ago. Somewhat surprisingly, the number of sexual harassment cases filed has not increased significantly. However, we’ve seen significant changes in how those cases get handled and resolved. For one thing, more claims get resolved before litigation gets filed. Employers who want to avoid the negative publicity of a sexual harassment claim have a powerful incentive to settle early. Once employees publicize their accusations, it may be impossible to undo the damage to a company’s reputation.

This is especially true in California, where employers settling a sex harassment case can no longer prevent plaintiffs from disclosing the factual basis for the claim. Before 2019, a settlement would typically require the plaintiffs to refrain from repeating the factual basis for their claims. No employer wanted to settle with the plaintiff and have the plaintiff continue publicizing his or her accusations. That changed with the adoption of California Code of Civil Procedure § 1001. Now, you can keep the settlement amount confidential and, as long as the case is against a private employer, you can keep the claimant’s identity confidential. But plaintiffs can’t agree not to disclose the factual basis for their claims even if they want to. As a result, employers have greater incentive to settle before litigation gets filed, since § 1001 doesn’t yet apply.

Another change is that many employers have stopped requiring employees to arbitrate harassment claims. They often do so in response to public pressure, such as this recent editorial arguing that “Mandatory Arbitration Enables Sexual Harassment.” These efforts to vilify arbitration are unwarranted. Plaintiffs’ employment lawyers have been battling against arbitration forever, largely because they know that jurors are more likely to be swayed by emotion and to see things from the plaintiff’s perspective. An arbitrator who has experience in a particular area of law is every bit as capable of reaching the right conclusion as a jury. And plaintiffs in arbitration are just as capable of publicizing their claims as plaintiffs in court. Arbitration is simply another method of resolving disputes. It no more enables sexual harassment than music enables people to dance poorly.

Some things haven’t changed. One is that prevention has to be a priority. The best way to prevent harassment is to ensure that people know what’s prohibited and where to go if they have concerns. For this reason, California requires most employers to train all of their employees in the state. Second, as I’ve said many times before, harassment litigation is less about what the harasser did than what the company did in response. Employers who learn of harassment in their workplace need to act immediately to address the situation. Often, that requires guidance from experienced counsel. The cost of getting legal advice on how to respond to these issues is a fraction of the cost of litigating these claims.

I’ve been doing a lot of harassment prevention training lately.

One reason is because it is an odd year (2019), and the requirement to train managers & supervisors started in 2005, so many California businesses are on an odd year cycle for in-person training (with online options in between).

Another reason is that such training is top of mind for many employers given the new #MeToo inspired laws (summarized succinctly here), including a need to train all employees, not just managers and supervisors, by January 1, 2020.

One theme in these trainings is that things that used to be okay just aren’t anymore.  There is a spotlight on these issues right now.  And as the news shows us, behaviors from many years ago are coming back to haunt people today.

One of those behaviors involves dating (or hooking up) with work colleagues.  Lots of people have done it.  Many still do.  But in today’s world, that is pretty darn risky behavior.

A question I often pose in training is “can you have a consensual relationship with your boss?”  Of course it feels consensual to the supervisor, and may feel consensual to the subordinate at the time…. but what about later?  How can the supervisor prove it was consensual if the subordinate later changes their mind?

For Valentine’s Day, we lawyers can consider a love contract, a document that both parties sign to indicate the relationship is voluntary, consensual, and if it ever is not, the subordinate has avenues for raising any concerns.  This may serve as a deterrent, but it is not a perfect solution.

What is?  Well, here is where we get to the maxims:

  • Don’t get your meat where you get your bread
  • Don’t fish off the company pier
  • Don’t dip your pen in company ink
  • And don’t [expletive] where you eat

Happy harassment-free Valentine’s Day!

The trend is to move away from holiday parties.  Some companies are opting for a family picnic in the summer instead, or a party in January after the holiday season is over.  If your company is still planning a holiday party this season, given the heightened attention to harassment issues, here are some tips to consider:

Misletoe

Explain to management that they are “on duty”:

  • They must watch drinking and related behavior
  • Remember professional boundaries
  • No touching (preferably even when dancing)
  • Do not drive employees home after the party
  • Do not “after-party” with staff
  • Use the “mom test” (i.e. if you wouldn’t do/say it to your mom or
    in front of your mom, then don’t do/say it)

Remind employees that you want them to have fun, but:

  • Normal standards of conduct still apply
  • Misconduct at or after the party will lead to disciplinary action
  • Drink responsibly
  • No marijuana (even if legal)
  • Encourage designated drivers (provide a gift) or ride sharing

For everyone:

  • Follow my “one wine, one water” rule (it is hard to get drunk if you drink a full glass or two of water between every alcoholic drink)
  • No dirty dancing
  • No sleep-overs after the party (or couch surfing)
  • And for goodness sake, please don’t hang mistletoe!

No lazy Sunday for Governor Jerry Brown!  Today he signed four new bills into law, taking major steps to combat sexual harassment in the wake of the #MeToo and #TimesUp movements. Here is a brief overview of the new laws and what they mean for California employers:

  • Senate Bill 820 prohibits non-disclosure provisions in settlement agreements related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. The bill expressly authorizes provisions that (i) preclude the disclosure of the amount paid in settlement and (ii) protect the claimant’s identity and any fact that could reveal the identity, so long as the claimant has requested anonymity and the opposing party is not a government agency or public official. Settlement agreements signed after January 1, 2019 should be review by counsel to ensure compliance with the new restrictions.
  • Senate Bill 1300 significantly expands liability under the Fair Employment and Housing Act (“FEHA”).  The law lowers the burden of proof to establish harassment and provides stricter guidance on what constitutes “severe or pervasive” conduct that rises to the level of unlawful harassment (e.g. rejecting the “stray remark” doctrine that previously required more than one offensive remark to succeed on a claim).  It expands FEHA protection to any harassment by contractors, rather than just sex harassment.  It denies a prevailing defendant from being awarded attorney’s fees and costs unless the court finds the action was frivolous, unreasonable, or groundless. This bill also prohibits release of claims under FEHA in exchange for a raise or a bonus or as a condition of employment or continued employment, but presumably not in separation agreements.  These changes take effect at the start of the new year and we will monitor interpretations or guidance of these new and expansive provisions.
  • Senate Bill 1343 expands the requirements relating to sexual harassment training. Current law requires all employers with 50 or more employees to provide two hours of sexual harassment prevention training only to supervisors. The new law now mandates training for all employers with five or more employees and becomes effective in 2020.  In addition, employers must ensure similar training in multiple languages for all workers so they know what sexual harassment is and what their rights are under the law.
  • While not employment-related, Senate Bill 826 requires public companies based in California to have at least one woman on their board of directors by the end of next year. The requirement rises to two female board members by 2021 if the company has five directors, or to three if the company has six or more directors.

Governor Brown did veto one of the most high-profile sexual harassment measure of the year, Assembly Bill 3080, which would have banned mandatory arbitration agreements.  Brown vetoed similar legislation on 2015 and the law, if passed, likely would have faced challenges that it was preempted by the Federal Arbitration Act.

Stay tuned for more in-depth coverage of these new laws.

It’s been five months since the #MeToo movement burst onto the scene. Since then, the headlines have been dominated with accusations of grossly inappropriate behavior by prominent politicians, entertainers, business people, and others. So it’s somewhat surprising that, according to acting EEOC Commissioner Victoria Lipnic (as reported in Law360 (subscription required)), the number of sexual harassment claims being filed with her agency hasn’t changed. Why is that?

One reason may be that employers are being more proactive. Those of us who do harassment prevention training are certainly doing more of it than in prior years. So perhaps (he said, trying to sound optimistic) employers are putting more emphasis on preventing harassment and those efforts are paying off.

Another explanation may be that employers are settling pre-litigation to avoid the devastating publicity that can accompany these claims, particularly with higher-profile defendants.

Also, many of the accusations that figure so prominently in the media involve conduct that occurred many years ago. Employees generally have no more than a year to bring these claims. So conduct occurring before then, no matter how offensive, will not be legally actionable.

Finally, it may be that the claims are working their way through the system. Before filing a lawsuit or a charge with a government agency, plaintiffs’ lawyers may be interviewing witnesses and lining up support for their clients’ claims. That process takes time.

Whatever the reason, employers shouldn’t let their guards down. They should continue to ensure that their harassment policies are legally compliant, that they appropriately investigate complaints of bad behavior, and that their managers are trained about their obligations in providing a harassment-free workplace. While there has not been a big upsurge in harassment claims yet, it only takes one to devastate your company.

The #MeToo movement has understandably made employers more concerned about sexual relations between coworkers. An office romance may seem consensual, but is it really? This is especially problematic when there’s a power differential – such as a supervisor-subordinate relationship.

So what can employers do to prevent coworker relations that they fear may end in a sexual harassment claim? Certainly, employers can establish rules and internal policies discouraging coworker relations. But, as recently affirmed by the Ninth Circuit in Perez v. City of Roseville, there are constitutional limits on what public employers, like State and municipal governments, can do if they discover a consensual office romance.

Coworkers sitting across from each other with heart, symbolizing office romanceIn Perez, the City of Roseville, California investigated police officers Janelle Perez and Shad Begley after Begley’s wife reported that Begley and Perez engaged in sexual conduct while on duty. The investigation revealed that the officers were involved in an extramarital affair, but the City could not prove that they engaged in sexual conduct while on duty. Begley and Perez were written up for violating department policies. A short time later, Perez was fired, purportedly for performance reasons unrelated to the affair. Perez sued, alleging that “her termination violated her constitutional right to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct.” The lower court granted summary judgment for the defendants and Perez appealed.

The Ninth Circuit reversed in part, finding triable issues of fact as to whether Perez was fired for engaging in constitutionally-protected private sexual conduct. The court said: “[T]he constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.”

In a nutshell, Perez establishes that, at least within the Ninth Circuit (including California), a public employer cannot take adverse action on the basis of an employee’s private, off-duty sexual activity, unless the employer demonstrates that the conduct caused the employee’s job performance to suffer. This holding arguably extends to employees in the private sector too, who are subject to the same constitutional right to privacy and intimate association.

Takeaway: The #MeToo movement has led many employers to believe that all office romances are off-limits and constitute a fireable offense. Not so. At least within the Ninth Circuit, public employers cannot fire employees for private, off-duty sexual conduct that does not adversely impact job performance. Of course, employers can and must address non-consensual conduct and conduct that creates a sexually hostile work environment. But that does not give employers the right to intrude into relationships outside of work that do not directly impact the workplace.

If you have a questions about sexual harassment, office romance, or employee privacy rights, our employment attorneys are here to help.

I don’t know Aziz Ansari and I can’t purport to know what happened in his apartment on the night of the first date that has headlined the news this week.  But, after 17 years as a labor & employment attorney, with a concentration in counseling on more than 100 sexual harassment claims in the workplace, I thought I would add a few nuggets to the conversation.

The claims against Ansari invoke the stickiest of scenarios, though they did not occur in the workplace.  An anonymous complainant, a consensual sexual encounter, the allure of a suitor with “power”, regret, and poor communication…Translating these factors into a workplace investigation can cause some pitfalls for even the best HR departments.

  • A significant percentage of complainants want to remain anonymous, presumably for fear of retaliation. While employers should not guarantee that any aspect of the investigation will be kept confidential, employers should limit details on a need-to-know basis.
  • Confronting an alleged harasser when an employer can’t or chooses not to disclose the identity of the complainant or details of the complaint is really tough.  Accused employees want to be able to appropriately defend themselves and California requires a “fair, prompt and thorough” investigation.
  • Because employers have to balance the investigation with the need to maintain a harassment-free workplace, employers aren’t required to know with absolute certainty that harassment occurred in order to take disciplinary action. The legal standard is an objectively reasonable belief that misconduct occurred (after a fair and objective investigation, which I’ll get to in a moment).
  • While the standard for an adequate investigation includes notice of the claimed misconduct and a chance for the employee to respond, this standard was set before the ubiquity of texts, and sometimes I see some really blatant and incriminating texts which make it easier for an employer to take action.
  • Once action is taken, the type of response an employer needs to give to the complainant is another source of disagreement.  Complainants want details about all aspects of the investigation, including who said what.  Yet employers want to safeguard not only the complainant’s rights, but the privacy rights of the accused and witnesses. A typical response you may have seen is that the matter has been handled and appropriate action has been taken.  Employers aren’t required to give details and if too many details are given, an accused may claim defamation.
  • Finally, harassment policies need to have specific information on prohibited conduct, reporting and investigation procedures, and no-retaliation.  Consensual relationships between supervisors and staff they manage should be prohibited to avoid the potential for coercion claims.  I have seen many cases where a complainant contends they engaged in the sexual conduct consensually, but because they felt pressured to do so or it was “easier” than saying no. It’s best to remove the power/control element of a workplace relationship.

There are no easy answers here and every single complaint of harassment is unique.  But in the effort to support victims, employers should not forget the reasonableness standards set by our courts and the balancing acts that need to occur during the course of an investigation.

With so much going on for employers in 2020, let us not forget the #MeToo movement and related changes in California’s laws requiring sexual harassment prevention training.  All employers with more than five employees anywhere must train all California employees (managers/supervisors and staff) on sexual harassment prevention training before year end.

A while back, I posted that the DFEH had a new online tool for employees, and suggested the California employers make it part of their new hire orientation.  The DFEH has now also posted a new online tool for managers and supervisors.  Yes, both are free!  And available in six languages.  And yes, all of your California employees must be trained.  And yes, you must pay for the time it takes your employees to watch the videos.  And yes, you must keep records of that training (because you must be able to prove compliance).

While there is no great substitute for in-person training, or training tailored to the particular issues in your workforce even if provided online (and our firm provides excellent training), a free training is much better than nothing.  So if costs are an issue this year, please make sure you at least do the bare minimum, and ensure that all employees (from your most senior management to your part-time or temporary hourly workers) are trained before year end.  Or take it up a notch, and have everyone watch the videos and also have an outside trainer or HR professional lead a discussion session afterwards.

Take it from me, if your business gets sued for harassment, the first piece of evidence you are going to be asked for is proof that the alleged harasser(s) and victim(s) attended your mandatory training.  Hopefully, you won’t have to scramble to figure that out, or explain why the alleged harasser is the one person who missing the training.  Trust me, that is not a helpful fact in the defense of harassment claims.

As someone who represents employers, I’ve long been a proponent of arbitration as a way to limit exposure to employment claims. I have colleagues who disagree and I recognize that it’s a complicated issue. So starting about five years ago, I’ve been laying out what I saw as the pros and cons of mandatory workplace arbitration. I did so to enable employers to make informed decisions on their own as to what course to take.

Like so much of employment law (and life in general), the only constant is change. Since I wrote on this topic last October, a federal district court ruled that AB 51 (seeking to ban mandatory workplace arbitration) was unenforceable, a state appellate court issued a decision restricting third-party discovery (Aixtron, Inc. v. Veeco Instruments Inc.), and COVID-19 has drastically decreased courts’ ability to get civil cases to trial. So given the current situation, here’s what I see as the pros and cons.

The Pros

  1. You avoid runaway, emotion-fueled jury verdicts. Any skilled plaintiffs’ trial lawyer knows how to appeal to jurors’ emotions. Those techniques don’t work as well on an experienced arbitrator. For that reason, while arbitration awards can be substantial, they tend to be more closely rooted in reality.
  2. The procedures (including discovery) are usually more streamlined than cases in court. Usually, that’s a benefit for the employer, who’s bearing the cost of the proceedings.
  3. The cases tend to settle more cheaply. This is a function of item 1 above. 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.
  4. Cases usually resolve more quickly in arbitration than in court.
  5. The attorneys’ fees are usually lower.
  6. If you win, the other side’s opportunity to appeal is very limited.
  7. Since the Supreme Court decided Epic Systems Corp. v. Lewis in 2017, it is now clear that you can require employees to waive the right to pursue class actions.
  8. It’s always been a struggle to get employment cases to trial. Every trial lawyer knows the frustration of preparing for trial, getting your witnesses prepared, lugging your files to court, and being told there are no courtrooms available and to come back in a few months. Given court closures due to COVID-19, and the need to give criminal trials priority, that problem is not going away anytime soon. Arbitration hearings, in contrast, usually proceed as scheduled.
  9. To the extent that proceedings take place by remote video, a jury trial will be far more unwieldy than an arbitration hearing. Trying to assess whether jurors are engaged and how they’re reacting by video seems especially daunting.

The Cons

  1. It’s easier for unrepresented parties to bring weak claims in arbitration. Because there are fewer procedural rules, it’s easier for a party to proceed even if they can’t convince a lawyer to take their case.
  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. But it’s not eager to do so, having passed up numerous opportunities.
  4. As our friends at Wage & Hour – Developments and Highlights have pointed 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.
  5. As part of the #MeToo movement, there have been concerted attempts by some to argue that arbitration agreements protect harassers. However, any remedy that an employee can recover in court in California against a harasser is available to the same extent in arbitration. I’ve also heard  arbitration attacked as a “secretive” process. It’s true that arbitration hearings are generally more private than court trials. But I know of nothing that prevents a claimant in arbitration from publicizing her claims however she wants. Still, there’s no question that the decision to adopt an arbitration program can be characterized as coercive or oppressive by certain groups.
  6. If you lose at arbitration, your opportunity to appeal is very limited.
  7. It can be harder to get cases out on dismissal or summary judgment.
  8. While it hasn’t been my experience, some say that arbitrators tend to “split the baby.”
  9. Based on the Aixtron decision, unless the arbitration agreement specifically allows it, you may not be able to subpoena information from third parties for discovery. I don’t know if that disadvantages one side over another, but it’s worth noting.
  10. Every year, the California Legislature passes a bill aimed at abolishing mandatory workplace arbitration. Governor Brown repeatedly vetoed the bills as unconstitutional. Governor Newsom signed AB 51, but as noted above, a federal court deemed it unlawful. That litigation, and the resulting uncertainty, continues.

So what are employers to do?

The lawyers who represent employees have been fighting to do away with workplace arbitration for years. The battle began well before the #MeToo movement. The reasoning has nothing to do with arbitrators being biased (they are certainly better at applying the law to the facts than juries) or plaintiffs not having an effective way to vindicate their rights (they can bring the same claims for the same remedies).

The issue here is money. Because juries are more likely to be swayed by emotion than arbitrators, a jury is more likely to grant a windfall verdict. As a result, jury verdicts tend to be higher than arbitration awards.  A corollary of that is that cases that are heading to a jury trial (with the greater possibility of an emotion-fueled verdict) tend to settle at a higher dollar amount than cases that are headed to arbitration. Sure there are other arguments for and against arbitration. But it would be naive to underestimate the financial motives behind this battle — on both sides.

I’ve defended hundreds of cases for employers over the years in court and in arbitration. From that experience, I believe that – for most employers – the pros outweigh the cons. Since most cases end up settling and cases subject to arbitration tend to settle more cheaply, I believe arbitration agreements still make sense. Of course, every employer is different in terms of goals, risk tolerance, employee relations, and myriad other factors. So you should discuss what makes sense for your company with qualified employment counsel.

UPDATE: I’ll be speaking on this topic at noon on September 24, 2020 at a virtual meeting of the San Mateo County Bar Association Labor and Employment Section. Register here.