Reasonable accommodation issues are tough.  Employees often want a lot of things that are not justified by a doctor’s note, and appropriately documenting the interactive process can be an uphill battle.

If you are in the LA area and have burning questions about how to reasonably accommodate employees under the ADA and California’s FEHA, then please come hear me speak for the LACBA on October 27th.  Topics for discussion will include:

  • Disability Leave:  How long is too long?  How long do you have to keep the job open during the leave?
  • Interactive Process Communications:  If there is no documentation, can you prove they occurred?
  • Undue Hardship:  Is it ever too hard to accommodate?  How expensive is too much?
  • Assistive Technology:  How does new technology change what’s reasonable? (i.e., is everyone entitled to a headset and a standing or walking desk?)

If you can’t make it, look for a blog post next week on tips discussed and lessons learned.

I have been conducting harassment prevention training for California clients since AB 1825 became effective back in 2005. After presenting what must be hundreds of sessions in the last decade, I am always on the look-out for new topics to discuss, and new hypotheticals to present, and sometimes the universe just cooperates with me. Watching the second Presidential debate last weekend was one of those experiences.

Young businessman arguing with sad stressed coworker
Copyright: vadymvdrobot / 123RF Stock Photo

Since 2015 (AB 2053), California law has required employers to train management on abusive conduct (also known as “bullying”). While bullying is not yet illegal, it should be against most employer policies, and should lead to discipline for employees who violate those policies.

Bullying is defined as workplace conduct, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. The law goes on to say that bullying may include:

  • Derogatory remarks, insults, and epithets;
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
  • The gratuitous sabotage or undermining of a person’s work performance.

So let’s consider the following hypothetical:

A group of managers is in a team meeting where each person is supposed to present on their enumerated topics to a group of colleagues. When one manager is talking, the other one (who is physically larger) is pacing behind, making faces, and making noises (something between a snort and a grunt). The hands are gesturing and fingers pointing. The manager pacing also repeatedly interrupts the colleague, either with snide comments, jokes (which get laughs or cheers), or insults. Is this bullying?

Would a reasonable person find this conduct to be hostile? Offensive? Unrelated to an employer’s legitimate business interests? Is this verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating? Absolutely.

In fact, many employment attorneys and HR professionals I know were physically uncomfortable while watching the debate, at least in part because we were witnessing conduct that no reasonable employer could tolerate. While we certainly cannot require free speech to be polite or politically correct, we certainly can and should agree that this type of bullying would not be okay in any workplace.

We posted before on AB 1732, which Governor Brown signed yesterday. This law prohibits businesses and government entities from labeling any “single-user toilet facility” as either “male” or “female.” It defines “single-user toilet facility” as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”

The bill’s sponsor, Assemblyman Phil Ting (D-San Francisco) issued a statement that:

Copyright: nu1983 / 123RF Stock Photo
Copyright: nu1983 / 123RF Stock Photo

“California is charting a new course for equality. Restricting access to single-user restrooms by gender defies common sense and disproportionately burdens the LGBT community, women, and parents or caretakers of dependents of the opposite gender. Bathroom access is a biological need. This law will ensure more safety, fairness, and convenience access for everyone.”

There’s no word yet on whether users of “single-user toilet facilities” will be statutorily required to put the seat down. The law takes effect March 1, 2017.

The Equal Employment Opportunity Commission issued its new “Enforcement Guidance on Retaliation and Related Issueson On August 25, 2016. Careful readers will be able to deduce from the section titled “Expansive Definition” that the EEOC uses an expansive definition of what constitutes protected activity. This activity is “protected” in the sense that any adverse action taken against someone for engaging in it is, by definition, retaliatory.

The EEOC Enforcement Guidance lists the following types of protected activity:

  1. Complaining about discrimination against oneself or others – This is the prototypical protected activity.
  2. Threatening to complain about discrimination against oneself or others
  3. Providing information in an employer’s investigation of discrimination or harassment
  4. Refusing to obey an order reasonably believed to be discriminatory
  5. “Passive resistance” – The EEOC gives the example here of a supervisor refusing a request to dissuade subordinates from filing EEO complaints. Apparently, the refusal doesn’t need to be articulated. Just not acting on the request is considered protected.

    Copyright: rtimages / 123RF Stock Photo
    Copyright: rtimages / 123RF Stock Photo
  6. Advising an employer on EEO compliance
  7. Resisting harassing behavior – The EEOC gives the example of an employee telling a supervisor to “leave me alone” and “stop it.” The fact that it’s a supervisor seems important here because the supervisor’s knowledge is imputed to the employer.
  8. Intervening to protect others from harassing behavior – Again, the EEOC example involves a co-worker intervening to stop harassment by a supervisor.
  9. Requesting accommodation for a disability or religion
  10. Complaining that pay practices are discriminatory – There doesn’t need to be an explicit reference to discrimination. If a woman says her pay is unfair and asks what men in the job are being paid, the EEOC deems that protected.

By taking a very broad view of what constitutes protected activity, the EEOC all but ensures that retaliation claims will remain the most popular charge it receives. We’ve previously described six steps that employers should take to protect themselves from these charges. As with so many types of employment claims, it pays to be proactive.

Bridgeport Continuing Education will be hosting a seminar titled: “Wrongful Termination, Harassment and Discrimination Claims” on July 29, 2016 in San Francisco. I will be speaking about Litigating and Defending Discrimination Claims, along with Jocelyn Burton. The program offers 5 hours of Mandatory Continuing Legal Education. You can get details and register here.

I hope to see you there!

Copyright: carlosphotos / 123RF Stock Photo
Copyright: carlosphotos / 123RF Stock Photo

Last month, the Select Task Force on the Study of Harassment in the Workplace issued a report. Among other things, it identified risk factors that can lead to harassment. They are:

  1. Homogeneous workforces – In other words, those that lack diversity.
  2. Workplaces where some workers don’t conform to workplace norms – This would include, for example, a man who’s perceived as overly feminine or a woman perceived as overly masculine.
  3. Workplaces with cultural and language differences – So too much homogeneity can be a problem, but so can too much diversity. Got it!
  4. “Coarsened Social Discourse Outside of the Workplace” – If people are crude outside of work, it’s more likely to spill over to the work environment.
  5. Workplaces with many young workers – According to the EEOC, young people are less aware of the laws and workplace norms. This makes them more likely to cross the line themselves and more likely to accept behavior that older workers know is over the line.

    Copyright: ocusfocus / 123RF Stock Photo
    Copyright: ocusfocus / 123RF Stock Photo
  6. Workplaces with large power disparities – The workers with less power are more vulnerable and the higher power ones “may feel emboldened to exploit them.”
  7. Workplaces that rely on customer service or client satisfaction – The key here is whether compensation is tied to customer satisfaction. If so, employees may be willing to put up with inappropriate conduct since it costs them money to object.
  8. Places where the work is monotonous or easy – “Idle hands …”, you know?
  9. Isolated workplaces – Fewer people around means fewer witnesses.
  10. Workplace cultures that tolerate or encourage alcohol consumption – Let’s all drink to that!
  11. Decentralized workplaces – If senior management is far away, lower levels of management may feel less accountable.

So the answer is simple. To minimize the risk of harassment claims you need to make sure that your workforce is diverse, but not too diverse; that everyone conforms to the same norms; that people behave appropriately even when they’re not at work; that you don’t hire those pesky young people; that you eliminate hierarchies; that you stop paying attention to customer service; that you make all the work interesting; that you have everyone work at one location; and that you discourage drinking.

If you’re not able to run your business that way, we’ve identified 6 questions employers should ask before receiving a harassment complaint.

Trying to keep track of all of California’s paid sick leave requirements is a daunting task. The state has its own rules and then so do seven municipalities, with Los Angeles joining the list July 1, 2016. Wouldn’t it be great if there was a single chart that contained all the requirements? Well now, thanks to Tyreen Torner, there is. Click on the link to download a PDF of the California Paid Sick Leave Rules Chart.

Copyright: olivier26 / 123RF Stock Photo
Copyright: olivier26 / 123RF Stock Photo

Are you curious about how the accrual cap rules in Oakland compare to the accrual cap rules in Santa Monica? Of course you are! Don’t be afraid to admit it. Are you wondering how the definition of sibling in San Francisco compares to the definition of sibling in San Diego? Just look it up. It’s all there. Right at your fingertips. Thank you Tyreen!

Seven months ago, Governor Brown vetoed a bill (AB 1017) that would have prohibited California employers from asking applicants about their salary history. Now a new bill that contains some of the same language, AB 1676, is before the legislature. Under both AB 1676 and its predecessor:

Copyright: liravega258 / 123RF Stock Photo
Copyright: liravega258 / 123RF Stock Photo

An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including, but not limited to, compensation and benefits, about an applicant for employment.

The new bill hasn’t made it very far and there’s no reason to believe it will fare better than AB 1017. But even if it doesn’t pass, should employers ask applicants about their prior earnings? I can think of three good reasons not to.

  • First, under California’s Fair Pay Act, salary history is not a proper justification for a pay disparity. So you can’t use that as a basis for paying one worker more than a co-worker who is performing “substantially similar” work. It’s easier to argue that you didn’t rely on this impermissible factor if you didn’t seek out the information.
  • Second, there seems to be growing sentiment that the question is improper and overly intrusive. For example, Alison Green, who writes the Ask a Manager blog, wrote this piece for US News giving tips on how to avoid answering the question directly.
  • Third, if you’re looking to fill a position, you should have some idea what people in that position make and what the value is to your organization. If you genuinely have no idea, maybe the benefits of asking the question outweigh the risks. But in most situations, asking for information that you’re prohibited by law from relying on is a bad idea.

Of course, if the legislature passes the measure prohibiting salary history inquiries, the issue will be moot.

Here’s another fun aspect of AB 1676. It says that: “an employer, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.” I’ve never heard of such a requirement before. Even if you make applicants sign nondisclosure agreements, isn’t it just a matter of time before your competitors know what you’re paying your workers? While we may get into this in more detail in a later post, I’ll say now that I think it’s a very bad idea. I also think the legislature knows that, since they’ve had the foresight to specifically exempt themselves from that requirement.

UPDATE: On June 2, 2016, the Assembly passed AB 1676. It now heads to the Senate.

The state legislature is considering a bill to require one-person restrooms to be labelled “All Gender.” The California Assembly approved the bill (AB 1732) on May 9, 2016 and it is now before the Senate.

AB 1732 would prohibit businesses and government entities from labeling any “single-user toilet facility” as either “male” or “female.” It defines “single-user toilet facility” as “a toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.”

Copyright: karenr / 123RF Stock Photo
Copyright: karenr / 123RF Stock Photo

The bill’s sponsor, Assemblyman Phil Ting (D-San Francisco) said:

We just sent a powerful message to the nation. This is a simple, safe, and respectful alternative to the hate being legislated in other states. Restrooms are a necessity of life, making equal access to them a civil rights issue. Gender segregated access to a solitary restroom defies common sense. This bill moves us in a direction where everyone’s rights are respected and protected

Ting’s reference to the “hate being legislated in other states” is directed at North Carolina’s battle with the US Department of Justice over that state’s legislation requiring people to use the bathroom or changing room that corresponds to the sex stated on their birth certificate. That bill deals only with multiple-user restrooms and changing facilities.

California NOW has joined transgender groups in supporting the issue. Its President, Jerilyn Stapleton, explains that single gender restrooms require women to wait longer. “Everyone should experience equal waiting time.”

If passed, which seems likely, the bill will take effect on March 1, 2017.

We recently updated a 15-page brochure that summarizes California’s unique employment law requirements. And it’s completely free. Not just free in terms of no cost, but also gluten free, which is a big deal here in the Golden State. Just download the PDF and it’s all yours.

Copyright: asiln / 123RF Stock Photo
Copyright: asiln / 123RF Stock Photo

The guide provides clear summaries of California’s unique requirements for meal and rest periods, the Fair Pay Act, paychecks and wage statements, the various leaves of absence, and more. Spending a little time to determine if your company is sufficiently protected is a lot quicker and cheaper than waiting for a lawsuit and learning first hand why California ranks as the number one judicial hellhole.

Special thanks to Sahara Pynes for her work updating this guide and to Cristina Armstrong and Tyreen Torner for their work on prior versions.