On 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.
The 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:
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:
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.
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.
In 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.
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.
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.
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.
One issue that consistently trips up employers is the interplay of laws for an employee with work-related medical issues. This is sometimes referred to as the Bermuda Triangle of workers’ compensation, ADA/FEHA (disability), and FMLA/CFRA.
Quite often an employee is injured, a workers’ compensation claim is opened, and the employer somehow forgets the other two prongs of the triangle. For example, the time off is not designated as FMLA/CFRA, with the rights that go along with it. Or the duty to engage in the interactive process and reasonably accommodate under the ADA/FEHA is somehow forgotten when the employee returns to work with restrictions.
The reality is that many legal issues start with a workers’ compensation injury, and if those claims are handled proactively, then related civil claims arising from disability can be avoided.
Here are some tips for handling those workers’ compensation claims:
And of course, make sure the employee is not retaliated against for filing the claim.
Be sure to remember all three sides to any work-related injury so you can avoid getting lost in the Bermuda Triangle!
