What a year it has been for harassment claims. The biggest year in the 22 years I have been practicing law. It seems that every day there is a big new headline or rejuvenated social media campaign, and someone else powerful losing their job over harassment allegations.

It is astounding to me that there are so many issues, even after AB 1825 was passed back in 2004 mandating harassment prevention training in California. That statute was expanded to require training on bullying and abusive conduct in 2015 (AB 2053). And now, as of January 1, 2018, it will need to include training on gender identity, gender expression and sexual orientation (SB 396).  With increased protections for transgender employees under California law, training to increase tolerance and understanding surrounding those issues will be particularly important.

Training certainly hasn’t fixed the harassment issue. But since training is mandatory for any business with over 50 employees, it might as well be meaningful. That is why I try to focus my training on real life stories and anecdotes that get people out of their own head (and point of view), and into the head of the victim. One of the main themes is always that harassment is based on perception, not intent; so it is possible to unintentionally harass someone, in fact it happens all of the time. For example, someone may think a compliment, sexual innuendo, or even a direct pass is flattery, but as the millions of “me too” posts reflect, that may not be how such conduct is perceived by the recipient.  Especially when there is a power differential at play.

David Schwimmer’s series of #that’sharassment videos provide realistic (and disturbing) examples of how harassment resonates in workplaces, and how it feels to the recipient.

In my career I have seen many talented and valuable managers lose their jobs due to inappropriate behavior that violated harassment policies. In my training, I tell all managers that doing a great job is not a defense to a harassment claim, and won’t protect them. That message certainly rings true based on recent headlines.

Illustration of a pot boiling overCalifornia employers can expect all of the news about harassment claims to keep bringing even more issues to the surface. The proverbial pot has been stirred.

And as current events have shown, taking prompt action to correct and prevent harassment is critical. There have been enough headlines about harassment in 2017, don’t let the next one be about your company.  Let’s put an end to the me too’s.

Starting January 1, 2018, new parents in California can rest a bit easier.  Governor Jerry Brown signed SB 63, officially titled the Parental Leave Act, into law yesterday which will impact employers with between 20 and 49 employees–in other words, employers who are not subject to the federal FMLA.  Mirroring the FMLA employee eligibility requirements, the new Act allows employees who work for a covered employer to take 12-weeks of unpaid, job-protected leave if they have worked a minimum of 1,250 hours in the 12-months prior to taking leave.  Employees can take leave only for the purpose of bonding with a newborn child, adopted child or foster child within a year of the birth or placement. Covered employers will also need to maintain health coverage under the same terms as an active employee. The Act also prohibits discrimination and retaliation against an employee for taking parental leave.

 

The Parental Leave Act does not require an employer to pay any portion of the leave but requires that employees be able to use accrued sick and vacation time.  Of course, a portion of the parental leave will be paid for employees who apply through the state’s Paid Family Leave program.  As previously blogged about by my colleague Jeff Polsky, San Francisco requires some employers to pay a remaining portion of parental leave and many companies are voluntarily choosing to enact paid parental leave policies. California joins New York and Rhode Island as the only states that require job-protected parental leave.

In 2009, a tragic accident occurred at a manufacturing plant in Orange County when a water heater exploded and killed two employees. The incident was duly investigated by Cal OSHA, and criminal charges were eventually brought against two individuals. Then the Orange County District Attorney decided to seek huge civil penalties against the employer under California’s Unfair Competition Law (“UCL”). The trial judge was prepared to allow the case to go forward, but the Court of Appeal issued a writ of mandate dismissing the case on the grounds that  federal OSHA law preempted, and did not allow an exception for, claims under the state UCL. The District Attorney appealed.

The California Supreme Court will now decide whether workplace safety issues can properly be characterized and challenged as “unfair competition”,  and, in any event, whether federal law preempts and prohibits state prosecutors’ attempts to extract monetary fines outside of the traditional OSHA enforcement mechanism. The case will be argued on November 7, 2017 in Sacramento. Fox Rothschild LLP is representing the employer.

Tyreen Torner has just updated this CA State & Local PSL Chart. It summarizes the Paid Sick Leave laws for California and the eight cities that have their own rules (LA, SF, San Diego, Oakland, Berkeley, Santa Monica, and Emeryville).

Have you ever wondered how the accrual cap rules in Santa Monica compare to the accrual cap rules in San Diego? Of course you have! Don’t be embarrassed. Are you curious about how the definition of sibling in San Francisco compares to the definition of sibling in San Diego? Just look it up. It’s all right there at your fingertips. All thanks to Tyreen!

There are few things I love more in life other than dogs and beer. So when I saw this article I was delighted! A beer company, called BrewDog, has decided to pay its employees a week of new puppy leave dubbed “pawternity” or “mutternity” leave when an employee gets a new puppy or adopts a dog.

29893089 – dog drinking beer tosa inu cute puppy lying on the grass and drinking beer

In my adult life I have raised three puppies, and each time I took “puppyernity leave” for the first week the puppy was home. Many clients, colleagues, and even opposing counsel were super supportive (and requested pictures). For those who love pets, especially puppies, they understand how hard that first week can be, and how little sleep you get.  Raising a puppy (or adopting a dog) is a tremendously joyous time, but it is also a big time commitment!

On a related issue, many clients have asked me if the various paid sick leave statutes coming up in cities all over the country allow time off for sick pets. My answer has been “not yet.” Unless, of course, you live in the city of Emeryville, and need sick time to care for a guide dog, signal dog, or service dog.

So let’s give a shout out to San Francisco, the most liberal city in the US. Come on now. Get on the puppy train. Let’s get some puppy leave ordinance drafted and expand sick leave to include pets. Oh, and while you are at it, make it mandatory to allow pets into all work spaces! Ok, maybe that one can wait. But are you really going to let a beer company based in Glasgow do more for employees (and their canine babies) than a business in San Francisco?

 

The California Legislature has completed its work for this session, and three bills concerning employment issues survived the process and have been sent to Governor Brown for his consideration and possible signature. All three of these prospective laws have been labeled “job killers” by the California Chamber of Commerce which is lobbying heavily against the bills. Opposing the Chamber on these issues are the state’s unions and the organized plaintiffs’ bar.

AB 1209 would require employers to report wage payments by gender. Such reporting would fuel the fires of lawsuits under the state’s recent Fair Pay Act under which a “pay gap” is presumed to be a result of illegal discrimination.

SB 33 would outlaw arbitration clauses in certain consumer agreements. This legislation is another example of the hostility of the California courts and legislature to arbitration agreements, including in the employment context. This new bill seems contrary to binding U.S. Supreme Court precedent, and would likely not survive a judicial challenge.

SB 63 would extend employee parental leave protections to employers with 20 or more workers. Currently the law applies only to employers with 50 or more workers. This law would obviously be a burden on smaller employers.

We can expect many of the bills that did not pass the legislature this year – such as required predictive scheduling for retailers and restaurants (SB 878), and universal health care — to reappear in the next session. This ever-vigilant blog, of course, will keep you posted.

39224362 – web content accessibility concept with wheelchair icon and symbol on a blue computer key for blog and online business.

The claim du jour is website accessibility.

Plaintiffs are suing businesses in alarming numbers alleging that websites are not accessible to persons with disabilities.  In this alert, Fox attorneys Carolyn Richmond, Ernest Badway and Jason Jendrewski offer practical guidance for avoiding a lawsuit.

In addition to explaining the legal issues, this article includes a comprehensive checklist to evaluate the accessibility of a website and its content.  It also includes helpful action items for conforming with the Web Content Accessibility Guidelines 2.0.

Get up to speed on this new legal issue here!

If the EEOC’s recent lawsuit against Estee Lauder is any indication of things to come, now is a good time to review your parental leave policy.  The crux of the policy at issue is a grant of six weeks of paid parental leave for a primary caregiver and two weeks for a secondary caregiver.  On its face, it seems lawful and non-discriminatory, but what about in practice?

A week before the EEOC filed suit, I was at a cocktail party chatting about parental leave with a business owner.  We discussed different trends in these types of policies and the concept of “primary” and “secondary” caregiver delineations.  “How do you know if someone is really a primary caregiver?” he asked.  “What if you know the father is definitely not the primary caregiver but insists he is for purposes of the parental leave policy?” Good questions.  I paused and responded that I wouldn’t recommend challenging the caregiver status and would operate on the honor system.

In the Estee Lauder case, the practice was to assume the mother is the primary caregiver unless the father proves otherwise or the birth is through a surrogate.  This assumption treats men less favorably than women and is the foundation of this lawsuit based on gender discrimination.

I have seen, and even drafted, numerous policies relying on caregiver status and have not seen any implementation issues based on gender.  But, in light of these recent lawsuits, I’ll be adjusting my recommendations.  Some issues to consider:

  1. Whether the policy treats men and women differently based on gender stereotypes (e.g. maternity vs. paternity)
  2. How parental leave coordinates with any state or local paid parental leave (information on San Francisco’s required policy here)
  3. How parental leave coordinates with any disability policy, as policies that seek to deduct state disability payments from parental leave policies treat disabled mothers less favorably than non-disabled fathers
  4. Ensure compliance with PDL, FMLA and CFRA in conjunction with any disability and/or parental leave policy
  5. With pending litigation, the law in this area could change soon, so seek counsel to be sure you are up to date

All of this news about hurricanes and the tragic images of people losing their homes (and everything in them), takes me back to advice my father gave me years ago, which was:  You need insurance for things you can’t afford to replace.

The same is true for businesses.  They need insurance for losses they can’t afford to sustain.  Yet, employers often don’t spend enough time thinking about insurance, until of course they need it, and are disappointed with the scope of protections provided.

I often see this with clients with regard to EPLI (Employment Practices Liability Insurance).  Some employers think they have it, but get sued by a former employee and find out they don’t have coverage.  But even those who have EPLI are not strategic enough about the scope of coverage they need.  Which brings me to my list of considerations:

Deductible:  How much of a deductible can you afford?  And what incentive does that provide in litigation? 

EPLI deductibles often range between $25,000 and $250,000.  A $25,000 deductible means that the business can afford a lot of litigation (if it wants to make a point of fighting to deter other claims).  A $150,000 or higher deductible may just cover larger losses, and motivate early settlements to save on the deductible.  A $75,000 deductible can be a reasonable middle ground (to either encourage settlements or litigate).  That said, I have had more than one mediator suggest that a client just pay the $75,000 deductible to settle because they will pay that much anyway if litigation proceeds. 

Choice of Counsel.  Many EPLI policies require certain law firms be used.  Others suggest that firms can be waived in.  Whether an off-panel firm to can waive in will depend on the insurance carrier.  Many times I have seen clients unable to get a desired firm approved. 

Attorney Rates.  Just about all carriers limit the rates that attorneys can charge.  But some also limit the rates that the client can pay.  Years ago it was typical for an employer to pay its law firm one rate, and then get partial reimbursement from the carrier for the approved (lower rate).  But now, many carriers prohibit that practice.  

Is Wage/Hour Covered?  Typically wage-and-hour coverage is excluded unless a separate rider is purchased.  And that separate rider is very much like earthquake insurance in California with a relatively high cost, high deductible, and limited coverage.  Many wage-and-hour riders have a $100,000 or higher deductible (that only covers defense costs and not damages).  And often defense costs are capped at some amount after the deductible as well.  For example, a policy may only cover $100,000 in defense costs after a $100,000 deductible; so the only real coverage is on the second $100,000 in attorneys’ fees.

36174445 – great abstract illustration of various sporting athletes around a globe in silhouette.

The time to think about these issues, and negotiate them (to the extent you can), is before you purchase or renew the policy, not after.  And while it isn’t fun to think about insurance, remember what my father said, it is important for those losses you simply can’t afford. 

Many people want to be liked. Problems arise, however, when a supervisor’s desire to be liked prevents them from pointing out deficiencies in an employee’s work. Pointing out deficiencies is a way for supervisors to help their workers understand what they need to do to succeed. It’s a way of giving employees a chance to make the adjustments necessary to meet the employer’s expectations. You don’t want to exaggerate faults or get overly personal, obviously. But supervisors are paid to help their workers perform at their highest level and they can’t do that without letting people know where they can improve.

17579715 – angry gorilla in suit on grey background

Unfortunately, candid, thoughtful performance evaluations aren’t as common as they should be. That is why, as I’ve explained before, employment defense lawyers often cringe when they see favorable performance reviews of an employee who was terminated for poor performance. For more advice on performance reviews, read this post on 8 Tips for Writing Performance Reviews Your Lawyer Won’t Hate.

Even coldhearted lawyers understand this desire to be liked. We mock it as a sign of weakness, but we understand it. So if you’re a supervisor and you want to be liked by your workers, get there by being someone who will give them straightforward, honest feedback about what they need to do better.