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?

Digital On Air sign, indicating broadcastingOn Fox’s entertainment industry-focused Pay or Play blog, associate Laurie Baddon wrote a post covering recent reports on employment agreements signed by news anchors working at television stations owned by Sinclair Broadcast Group. Laurie breaks down the controversial elements of the agreements, and examines them in the context of California employment law.

To get a better sense of the legal aspects of this national news story, we invite you to read Laurie’s post on Pay or Play.

Over the past few months, I have read blogs and opinion columns about whether alleged sexual harassers have been proclaimed guilty by their employers and the media without due process.  That is, are companies rushing to fire bad actors in the wake of the “me too” movement unfairly?

Some accused harassers are taking a play from Twisted Sister, saying “We’re Not Gonna Take It” and are seeking legal counsel to help.  In the past, lawsuits filed by alleged harassers have been few and far between, but a new case filed against HSBC bank a few weeks ago in New York, plus few threatened lawsuits we have seen, make me wonder if this will be a new trend.

Let’s talk about what due process entails.  The term “due process” is a legal term found in the Fifth Amendment to the U.S. Constitution which states that the government cannot deprive citizens of “life, liberty, or property without due process of law.” As would be expected, dozens of Supreme Court cases clarify the procedural and substantive elements of “due process.”  Notably absent is a due process requirement in the private employment context.

Employers have more flexibility to set parameters for employees than, let’s say, a judge has in a criminal proceeding.  And that makes sense.  But employers can still face liability for an inadequate investigation as discussed by my colleague Jeff Polsky.  Specifically, the standard for investigating harassment claims in California was established in the 1998 case Cotran v. Rollins Hudig Hall International, Inc., 1998 Cal. LEXIS 1 (January 5, 1998).  The court established employers must simply have a “reasonable and good faith belief” supporting any adverse action taken against an employee.  Given that employment lawyers are seeing the number of harassment claims in the workplace rise, employers should also be prepared for increased push back by alleged harassers.  Some of the ways employers can protect themselves, their workplaces, and ensure an adequate investigation and their own version of “due process” are found here.

Every year I look forward to attending and presenting at the Cornell HR in Hospitality Conference.  It is a great time to connect with clients, contacts, and to learn from the best and brightest in the hospitality industry.

Group of people discussing human resources around a tableThe three big themes this year seemed to be:  (1) #metoo and the many repercussions thereof; (2) the struggle to get the best talent in an era of low unemployment; and (3) the uncertainty of immigration laws and how to best protect valued employees and still comply with the changing legal landscape.

On the issue of #metoo (an issue we have blogged about many times over), my takeaways were:

  • Implement a “safe word” for colleagues to use with each other if someone is making them uncomfortable for any reason, without having to go to HR; I note my millennial niece often simply announces “uncomfortable.”
  • It is important for leaders (especially male leaders) to really listen to women and how these issues have impacted them, and not simply “mansplain” (and if you don’t know what that means you are likely doing it).

On the issue of recruiting the best talent, there was lots of talk about how to define the company culture in a way that attracts desired recruits.  One panel discussed performance assessments and how they are too long and complicated, and often do not mirror the company’s cultural values.  Some ideas there were:

  • Simplify and shorten
  • Provide reviews quarterly instead of annually
  • Ask fun questions:  What is your superpower and why?
  • Make them forward looking
  • Embrace anonymous 360 reviews, up and down the scale, so candid feedback can be provided

And finally, on the issue of immigration, on the one hand there is compassion for employees.  One panelist told a story about an employee who needed time off because her mother was deported and at 20 years old (and a citizen), she was suddenly responsible for the care of her 6 year old sister.

On the other hand, employers also have to deal with AB 450 (the California Immigration Worker Protection Act), which prohibits CA employers from granting access to immigration officials at a place of labor without a judicial warrant.  As of last week, this law is being challenged under federal law.  In addition, there is increased Federal I9 enforcement, so employers with concerns in that area should be proactive in reviewing those I9s.  Bottomline, it is time to have immigration counsel on speed dial, or subscribe to our firm’s blog on that subject.

All in all, a great conference.  Hope to see you there next year (March 25-27, 2019 at the Cosmopolitan in Las Vegas)!

 

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.

 A disabled employee asks her employer for an accommodation. After engaging in the interactive process, it becomes clear that the accommodation requested is going to be challenging. At what point can the employer say “no” to an accommodation request because it creates an undue hardship?

If the accommodation is cost prohibitive, that can be enough to show undue hardship. But the question of undue hardship is not limited to financial burden. In other words, just because a company can monetarily afford to provide the accommodation requested, it is not necessarily required to do so.

Accommodations that are “unduly extensive, substantial, or disruptive” can create an undue hardship regardless of monetary cost. See US E.E.O.C. v. Placer ARC, 114 F. Supp. 3d 1048, 1058 (E.D. Cal. 2015). Maybe a requested accommodation would not financially break the company, but it would affect essential operational flexibility. That can be enough to show undue hardship. See Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993).

Of course, the law expects employers to accept certain costs, inefficiencies, and burdens to keep disabled employees working. Whether hardship is undue will depend on the employer’s size and resources.

Finally, remember that if no reasonable accommodation exists, and/or if the accommodation creates an undue hardship, the employer should consider reassigning the disabled employee to another vacant position. But that’s a blog post for another day.

When an employer gets sued for sexual harassment, the focus is not on what the alleged harasser did. It’s on what the employer did to provide its employees a harassment-free work environment. This includes both steps taken before anyone complains and steps taken in response to the complaint. So if your goal is to prevent your company getting sued for harassment, there are 12 steps you can (and should) take now. In fact, California law requires these things be present in all harassment policies.

  1. List all the categories currently protected under the Fair Employment and Housing Act, i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status.
  2. State that the policy prohibits harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. (That’s basically everyone, isn’t it?)
  3. Provide confidentiality, to the extent possible, for complaints.
  4. Promise timeliness. This is a point of emphasis. The regulations require “a timely response,” “timely investigations,” and “timely closures.”
  5. State that investigations will be impartial and conducted by qualified personnel.
  6. State that investigations will be documented and tracked for reasonable progress.
  7. Provide “appropriate options for remedial actions and resolutions.”
  8. Designate personnel to receive complaints, while stating that employees are not required to complain to their immediate supervisors.
  9. Instruct supervisors whom to direct complaints to. Don’t let them investigate on their own, unless they’re trained to do so.
  10. Indicate that the employer will conduct a fair, timely (there’s that word again!), and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence.
  11. Indicate that, if misconduct is found, the employer will take appropriate remedial measures.
  12. Prohibit retaliation.

Perhaps you’ve noticed that harassment claims have been in the news a lot lately. The first line of defense is having a compliant policy in place. Not allowing your employees to ever interact with customers, supervisors, vendors, or each other may also be effective, but that doesn’t seem to work for many businesses.