Harassment

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It’s that time of year again. Time for holiday parties, ugly sweaters, and summaries of legal developments.

The #MeToo movement has resulted in a slew of new bills addressing sexual harassment in the workplace. They include:

  • Assembly Bill (AB) 3109 prohibits language in contracts or settlement agreements that bars anyone from testifying in administrative, legislative or judicial proceedings concerning alleged criminal conduct or sexual harassment. I think that those provisions would have been void under prior law.
  • Senate Bill (SB) 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 reviewed by counsel to ensure compliance with the new restrictions.
  • SB 1300 significantly expands liability under the Fair Employment and Housing Act.  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 bars 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.
  • SB 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.
  • The FEHA already protects employees and applicants from harassment in the employment relationship. SB 224 expands that reach to individuals who may not be employers, but hold themselves “out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party.” This would potentially include doctors, lawyers, investors, landlords, elected officials, lobbyists, directors, and producers.
  • Defamation laws make certain communications privileged. In other words they cannot support a slander or libel claim unless they’re made with malice. AB 2770 says that those privileged communications include complaints of sexual harassment by an employee to an employer that are made without malice and are based on credible evidence. This bill would also protect employers who (again, without malice) answer questions about whether they would rehire an employee and whether that decision is based on a determination that the former employee engaged in sexual harassment.

Other bills that address sex, gender, and pregnancy discrimination include:

  • AB 1976 deals with lactation accommodation. Employers were already required to provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for her baby and make reasonable efforts to provide a private place for the employee to do so, in close proximity to the employee’s work area, other than a toilet stall. AB 1976 says its not enough that the location is not a toilet stall. Now it can’t be in a bathroom.
  • AB 2282 clears up lingering issues from last year’s ban on salary history inquiries in the interview process. Our own Nancy Yaffe explains it all in this post.
  • While not strictly employment-related, SB 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.

There were even some new employment related bills that had nothing whatsoever to do with sex harassment or discrimination.

  • SB 970 requires 20 minutes of classroom or other interactive training regarding human trafficking awareness to hotel and motel employees whom the law deems “likely to interact or come into contact with victims of human trafficking.” This includes any “employee who has reoccurring interactions with the public, including, but not limited to, an employee who works in a reception area, performs housekeeping duties, helps customers in moving their possessions, or drives customers.”
  • AB 2610 creates an exception to the rule that meal periods must begin before the end of the fifth (or in certain conditions sixth) hour for certain drivers transporting nutrients and byproducts from a licensed commercial feed manufacturer to a customer located in a remote rural location.
  • In November California voters approved Proposition 11, which was a reaction to the California Supreme Court’s 2016 decision in Augustus v. ABM Security Services, Inc. As we explained at the time, the decision announced that employees were not “relieved of all duties” for meal and rest breaks if they were required to carry a communications device. Under Proposition 11, the Augustus decision won’t apply to emergency ambulance workers in the private sector. Toni Vranjes wrote an article for the Society of Human Resource Management about Prop 11 in which she interviewed me and other employment lawyers.

What lies ahead? Last April’s California Supreme Court decision in Dynamex Operations West Inc. v. Superior Court threw employers for a loop by announcing a new test for determining independent contractor status. Competing bills seek either to roll back the decision (AB 71) or codify it (AB 5). This is an issue where many workers who appreciate the flexibility of their freelance status have sided with employers in seeking to return to the earlier test.

What else lies ahead? More change, more surprises, more unpredictability. That’s what makes California employment law both aggravating and fascinating.

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.

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?

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.

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.

 

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 read an article yesterday about a writer accused of sexual harassment.  So what, you are probably thinking? While articles like that are commonplace these days, what infuriated me was that the individual had been investigated multiple times for sexual harassment related misconduct.  The alleged harassment occurred at numerous companies, with prominent HR departments, yet each time he was fired or left for a new job, his new employer had no idea about his past behavior.  And I feel partly to blame for that.

As an employment lawyer, we advise our clients that best practices with regard to references is to establish a policy where the company simply confirms dates of employment and job title(s) held.  We used to allow salary confirmation upon request of the departed employee, but that is no longer advised under California’s Fair Pay Act.  So, we have inadvertently created a system where alleged harassers (and other terminated employees) get to move on and become someone else’s (client’s) problem. 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.  There are many resources on the intricacies of these claims, so I won’t get into them here.

While there is no duty to provide a reference and saying nothing is still the most conservative course of action, I think some employers will want to be more progressive in the #metoo era and I’d like to give some guidelines on how not to sweep this under the proverbial rug.

  • California employers are protected by a qualified “common interests” privilege against defamation claims as a result of giving reference checks. So long as statements are based on credible evidence and are made without malice, employer references are given a special privilege that forms the basis of a defense against defamation.  California courts have regularly supported this employer privilege in the interest of public policy, which is now more prominent than ever.
  • If you have an existing policy on references, be consistent in following it, or change it to something you are comfortable with.
  • Designate one person to handle all references so the conduct and statements of individual managers don’t become a liability for the company.
  • If you opt to provide a substantive reference, the reference should not be misleading. Don’t give a glowing reference for an employee terminated for misconduct or there could be liability for fraud or misrepresentation, plus the potential for a wrongful termination suit from the alleged harasser.  The best bet is to be truthful, without providing too many unnecessary details.
  • Some examples of how to give a negative reference without disclosing details include: ineligible for rehire, investigated for policy violations or was the subject of complaints by coworkers.
  • While the fear (and fear of the expense) of being sued is enough to chill employers into keeping their mouths shut, and consequently perpetuating a cycle of harassment or other bad behavior, the reality is there are very few published cases on this in California, leading me to believe that while the risk is real, this isn’t likely to be a money-maker for the plaintiff’s bar.

Finally, while there is pending California legislation in the form of SB 820 that would prohibit confidentiality clauses in any sexual harassment settlement agreements, so far there are no added protections for employers providing substantive references.

The decision of how much, if any, information to provide, involves an individualized risk assessment, but I can see California’s public policy interest as a strong driving force in changing the current “no comment” practices of many employers.