Maybe Governor Jerry Brown read my January blog post on references because, last week, he signed AB 2770 into law.  Effective January 1, 2019, employers are protected by an expanded privilege when giving an employment reference.  The privilege protects employers from defamation claims when advising a prospective employer that the applicant was the subject of a credible sexual harassment claim.

The claim must be “without malice” and based on credible evidence in order to be covered by the privilege.

Employers are currently protected from non-malicious references regarding the job performance or qualifications of an applicant for employment. Existing law also authorizes an employer to answer whether or not the employer would rehire an employee.  However, many employers don’t use their privilege to speak out against bad actors in their workplace. 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.  In failing to give a truthful reference, we have created a system where alleged harassers (and other terminated employees) get to move on and become someone else’s (client’s) problem.

Now, employers who want to ensure alleged harassers don’t continue their bad behavior at their next employer can feel more secure in speaking up about employee performance and policy violations when the next reference check call comes in.

Thorough investigations can protect employers from claims that their decisions were discriminatory, retaliatory, or in bad faith. Conversely, a defective investigation can increase an employers’ exposure to those same claims. Consider, for example, Viana v. FedEx Corporate Services, an unpublished Ninth Circuit opinion issued on March 22, 2018. The appellate panel in that case overturned summary judgment for the employer because (among other things) there were issues regarding the adequacy of the investigation. The court noted, for example, that there was evidence that the supervisor conducting the investigation referred to the plaintiff using derogatory and sexist terms and failed to get the plaintiff’s side of the story before deciding to terminate.

To help ensure that your investigation strengthens your ability to support whatever decision you ultimately make, follow these ground rules:

  1. Pick a qualified investigator — You want someone who’s far enough from the situation to be impartial and who has experience investigating these types of issues. It also needs to be someone who understands how to question witnesses. (Now the cynics out there may be thinking that I’m just saying that so people hire us to do their investigations. To that I respond: 1)  If people follow these steps, there will be less harassment litigation, and therefore less work for me and my ilk; and 2) It’s not as if the goal of this blog is to repel clients.)
  2. Follow your company policies — The policies are there for a reason. Use them. Any irregularities allow plaintiffs and their attorneys to raise doubts as to whether this was a good faith investigation or a cover-up.
  3. Keep things moving — Get to witnesses while their memories are fresh. Delays make it too easy for a plaintiff to argue that discovering the truth wasn’t a priority for the employer.
  4. Document every step — The most critical documentation will be written statements from key witnesses. Documentation minimizes the opportunity people have to change their stories. And save every scrap of documentation.  If you dispose of anything expect to be questioned about what you were trying to hide.
  5. Evaluate the evidence objectively — The person complaining doesn’t have to prove his or her case beyond a reasonable doubt. Even if it’s the proverbial “he said/she said,” you need to decide who is more credible.
  6. Take appropriate remedial action — If you conclude there was wrongdoing, take actions reasonably calculated to prevent it from recurring.
  7. Keep the complaining party informed — Let them know the status of the investigation, the conclusions, and the steps being taken. Then when it’s all over, follow up with the complaining party periodically to make sure that there have been no further issues.
  8. Don’t add a retaliation claim to your problems — Do nothing to the complaining party that could be viewed as punitive. This includes transfers, reductions in hours, or anything else that penalizes or isolates them.

A prompt, thorough investigation can go a long way towards protecting an employer from litigation. A shoddy investigation can have the opposite effect.

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.

Many people are saying that this California Employment Law Blog doesn’t spend enough time discussing Mississippi law. Well today that’s going to change.

On August 8, 2016, the Fifth Circuit Court of Appeals overturned a decision saying that a company can fire an at-will employee for having a firearm in his truck in the company parking lot. In Swindol v. Aurora Flight Sciences Corporation, the employer had a rule against bringing a firearm onto company property. When it learned that Swindol had a firearm locked in his truck in the company lot, it terminated his employment.

Swindol sued for wrongful termination relying on section 45-9-55 of the Mississippi Code. That statute generally prohibits employers from having a policy or rule that “has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle ….” So the court ruled that, under Mississippi law, terminating an at-wil employee for having a gun in his car is unlawful.

Copyright: fxquadro / 123RF Stock Photo
Copyright: fxquadro / 123RF Stock Photo

How does this affect California employers? It doesn’t! We have no such statute here. If an employer wants to prohibit employees from having guns in their cars on company property, it may do so. If an employee breaks that rule, the employer can discipline the person, including termination in appropriate situations. Or, you can transfer them to Mississippi. Take your pick.

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

The Equal Employment Opportunity Commission reports that, in fiscal year 2015, 44.5% of the charges it received alleged retaliation. That makes retaliation the most popular charge it received by a large margin. Previous statistics showed that retaliation claims were even more popular at the Department of Fair Employment and Housing – the EEOC’s California counterpart.

Copyright: bds / 123RF Stock Photo
Copyright: bds / 123RF Stock Photo

A lesson for employers here is that successfully addressing a discrimination complaint is only half the battle. Plenty of deficient discrimination claims have led to valid retaliation claims.

Expect retaliation claims to remain popular. Proactive employers should take steps now to minimize their risk. Last September, I discussed these six steps employers can take to avoid retaliation claims.

We recently updated a 15-page brochure that summarizes California’s unique employment law requirements. And it’s completely free. No postage and handling. No commitments to buy more. No need to provide your e-mail or credit card information. Just download the pdf and it’s all yours.

Copyright: drstokvektor / 123RF Stock Photo
Copyright: drstokvektor / 123RF Stock Photo

Spending a little time to determine if your company is sufficiently protected is a lot quicker and cheaper than waiting for a lawsuit, even if California has supposedly dropped to #2 on the list of judicial hellholes.

Special thanks to Tyreen Torner for her work updating this guide and Christina Armstrong for her work on prior versions.

I’ve just ordered my family’s holiday cards and started making my gift lists.  I know that the holidays will creep up on us quickly and before I relax with a gingerbread latte, there is work to be done.  I wanted to share my list of the five HR-related to-dos California employers should consider before the end of this year.

Year-end HR To-Do List
Copyright: mexrix / 123RF Stock Photo
  1. Review Your Independent Contractors: This year’s numerous court decisions and administrative guidelines make it virtually impossible for companies to categorize workers as independent contractors. Now is a good time to review who you are still paying via Form 1099. January 1 is the best time to convert misclassified independent contractors to W-2 employees so that tax paperwork will be as clean as possible and hopefully not raise any concerns. When in doubt, classify workers as employees and talk to your attorney to help craft the appropriate communication.  For classification criteria if you choose to continue to work with contractors, I invite you to read a Law360 article written by my colleague Colin Dougherty, entitled “Nothing New in DOL Worker Misclassification Memo.”
  2. Ensure Employees Are Properly Classified: While the DOL’s proposed amendments to increase the salary threshold for employee overtime exemptions are usually ignored by CA employers, if these amendments pass, they will indeed impact many CA workplaces. So, it is worth taking a look at questionably classified employees whose salaries are below the proposed threshold. Effective January 1, 2016, this amount in California will increase to approximately $800 per week ($41,600 per year) when California’s minimum wage increases to $10.00 per hour. The new federal proposal raises that amount to $970 per week ($50,440 annually). There is also a proposed increase in the “highly compensated” exemption from $100,000 to $125,148 annually. You may have a suspicion that some of your employees within this salary band should be earning overtime, in which case, the new year is as good a time as any to minimize overtime liability and reclassify those employees.
  3. Organize Personnel Files: Consider this a second chance at spring cleaning. At the end of each year, take the time to organize your employee files and I-9 Forms and separate the terminated employees from the active. Keep I-9 files separate from employee personnel files and maintain them for one-year post-termination. Keep terminated employee personnel files for three years after the date of separation.  Once that retention requirement has been met, grab the shredder.
  4. Review Your Paystubs: Why start another year wondering if you might get hit with the PAGA suits that are plaguing other California employers? Don’t assume your third-party payroll provider has it covered. Especially with the new reporting requirements on paid sick leave, best practices demand that accounting, human resources and payroll administrators are collaborating to ensure compliance. Luci Li recently posted a go-to list of what must be included on every employee’s regular wage statement.
  5. Analyze Compensation Practices: The California Fair Pay Act goes into effect January 1st so your policies and practices need to be in compliance. Evaluate employees by job duties, not title, to ensure men and women are compensated equally. If you find disparity, either fix it or be sure you can justify it. Jeff Polsky recently posted a rundown on the Fair Pay Act and what factors can legitimately be used to justify pay disparities.

Well, until the year-end close-out phone calls start rolling in, I think I’ll head over and get that latte… in a red cup, of course.

You terminate an employee.  Before you disable that employee’s login password, he downloads sensitive information to take with him.  Ideally, that information is encrypted and can’t be read on any outside computer.  But you never know what a capable hacker can do and once the information has been taken, the damage might be irreversible.  The Computer Fraud and Abuse Act (CFAA) may be one way for employers to recover for their economic harm.   Under the CFAA, an employee or former employee may be liable for obtaining information through intentional unauthorized access to the employer’s computer.  Generally, if the person intends to defraud the employer and obtains any information worth $5,000 or more within a 1 year period, or causes damage or loss to the computer system, that person is liable for the employer’s economic harm.

Copyright: andose24 / 123RF Stock Photo
Copyright: andose24 / 123RF Stock Photo

Recently at least one California court recognized that CFAA liability does not require circumvention of any technological barriers (i.e. hacking).  CFAA liability can arise when an employee or former employee’s log-in information is still functioning, but: 1) the employee has lost permission to access the employer’s systems (i.e. his employment ended), 2) knows he does not have permission, and 3) logs in to obtain information anyway.

The CFAA is not limited to employees or former employees.  It extends to contractors and anyone who once had authority to access the employer’s computer system but no longer has that privilege.

Takeaway: The best way to avoid employee theft of data and digital information is to have sophisticated barriers to prevent unauthorized access.  It is also a good idea to terminate a former employee’s log-in rights as soon as possible after their employment ends.  While prevention is key, it is not uncommon for companies to suffer data breaches at the hands of their employees.  If the employer suffers such an employee theft of proprietary information, the employer can recover damages from that employee under the CFAA.

To stay up to speed in this area, check out Fox Rothschild’s Privacy Compliance and Data Security Blog.

One of this blog’s most popular posts has been 24 Questions to Ask Before Terminating an Employee. Here’s another question to ask: Why now?

One way that employees and their lawyers attack the employer’s justification for the termination is to question the timing. Why wasn’t the decision made closer in time to the event the employer complains about? Why wasn’t it made after an earlier, more egregious occurrence?

Copyright: sifotography / 123RF Stock Photo
Copyright: sifotography / 123RF Stock Photo

If the termination gets challenged, the employee and his or her lawyer will have months to come up with holes in the employer’s rationale for terminating. So it’s important for employers and their counsel to give serious thought to how their justification will withstand that scrutiny. Therefore, add “Why now?” to my earlier list of questions to ask before terminating.