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Wednesday
Mar082017

The Customer Is (Not) Always Right: An Employer's Duty to Protect

Discrimination Claims Prevention 

by Amy I. Huberman

818-907-3014

 

Everyone is entitled to their opinion, and in this political climate, it seems as though more people are comfortable voicing those opinions, even if they may offend someone.

Although free speech is a primary pillar of our democratic heritage, in the employment law context, that particular right may cause liability for the employer.

For example: 

Shortly after the November election, an airline passenger was permanently banned from flying Delta Airlines, for his expletive-ridden pro-Trump/anti-Clinton rant before takeoff. Though the flight crew allowed the passenger to continue on his journey, corporate saw the viral video shot by a fellow passenger and clipped the disruptive passenger’s wings:

We must stay true to Delta’s core values and treat one another with dignity and respect. We also must remain committed more than ever to the safety of our customers and our crew members. We will not tolerate anything less.

In another instance, a Michael’s retail customer went on a tirade and claimed she was discriminated against by African American employees when asked if she wanted to purchase a shopping bag. Like Delta Airlines, the retailer’s corporate office also released an official statement:

At Michaels, we do not tolerate discrimination or racism of any kind against our team members or customers. We regret that our customers and team members were affected by this unfortunate incident and are grateful for the leadership of our store team in working to resolve it without further escalation.

Even more recently, a Walmart customer in Texas said to a store employee, “I know you ain’t leaving. I know you’re here to stay. Y’all should go to your own countries and fix up your own countries.” A fellow Walmart employee filmed the incident. The employee being berated by the customer responded that she didn’t want to hear anymore, and then had her supervisor take over. That employee later expressed concern for her job, should she share the video with the media. Walmart has yet to respond officially.

Thus far, xenophobic incidents (in the employment context) in California aren’t as rampant. But if, and when, something similar does occur, here’s what employers should know:

California Employees Protected Under FEHA

The California Fair Employment and Housing Act protects employees from discrimination, retaliation, harassment and bullying. In 2016, several FEHA amendments expanded protections for job applicants and employees. The amendments require employers to implement a complaint procedure where employees can safely report harassment, discrimination or bullying behavior without fear of retaliation. 

FEHA also mandates that employers must take steps to protect its employees from third parties – including patients, clients and customers; vendors; delivery personnel; or others. Employers cannot turn a blind eye when an employee in the workplace is subjected to harassing, discriminatory or disrespectful conduct based on the following real or perceived characteristics: 

  • Race
  • Color
  • Age (over 40)
  • Gender (identity, expression)
  • Sexual orientation
  • National origin, ancestry or citizenship
  • Religion
  • Marital status, domestic partner status
  • Military or veteran status
  • Sex, pregnancy, childbirth, breastfeeding, related medical conditions
  • Physical or mental disability or conditions
  • Genetic information

FEHA requires employers notify its employees of complaint procedures. In addition, when a complaint by an employee is submitted, that complaint must be: 

  • Responded to in a timely manner
  • Kept as confidential as possible
  • Investigated impartially and as soon as possible

Employers should also:

  • Document and track the investigation’s progress
  • Provide options for remedial actions and resolutions
  • Conclude the investigation in a timely manner 

Although the “customer is always right,” a customer harassing and discriminating against an employee is wrong. Employers should update all policies and procedures to ensure the actions of third parties, such as the conduct described above, does not lead to costly and unnecessary litigation. 

Amy I. Huberman is an Employment Defense Attorney.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Feb162017

Hiring and Firing in Los Angeles: Fair Chance Initiative Update

Lawyer for EmployersEmployment Defense

by Tal Burnovski Yeyni

818-907-3224

 

We told you about Los Angeles’ Ban the Box ordinance in early December. Also known as the Fair Chance Initiative for Hiring Ordinance (FCIHO), the new regulation seeks to reduce recidivism by limiting inquiries regarding applicants’ criminal histories.

The City of Los Angeles recently posted further resources online in connection with the FCIHO. They include: 

  • Rules and Regulations for Implementing FCIHO

  • Notice to Applicants and Employees (for Private Employers or City Contractors)

  • Assessment and Reassessment Forms

  • Sample Letter: Notice to Rescind Employment Offer

  • Complaint Forms (in English and Spanish for applicants and employees) 

If you read our post in December (see link above), you know that employers must include in employment ads notice regarding compliance with the FCIHO.

Employers may not inquire about an applicant’s criminal history until AFTER an initial offer of employment has been made – in other words, not on a job application or during the interview or selection process.  If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and performs written assessment.

The Rules and Regulations suggest that the employer shall at least consider the following factors in the assessment: 

  • What is the nature and gravity of the offense? (The harm caused by the criminal conduct should be considered)

  • How much time has passed since the offense? (Convictions remote in time are less significant than similar more recent ones)

  • What is the nature of the job duties and responsibilities? (Consider the job’s essential functions and the circumstances under and the environment in which the job is performed.)

  • Is the employer looking at ONLY convictions? Arrests cannot be considered in employment decisions. 

Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.  The Rules and Regulations specify that if an employer relied on oral information to form a determination of Adverse Action, the employer should summarize this information by putting it in writing and maintain it with the employment records.  For example, a verbal reference check with former Employer should be documented.

Of course, certain exceptions still apply, i.e. if the employer is mandated by federal or state law to obtain information regarding conviction, especially if the position requires the use of a firearm, or if the employer is prohibited by law from hiring applicants with criminal convictions. Also, some applicants may be prohibited from holding certain positions because of their criminal histories.

Remember, fines on employers who violate the Rules and Regs of FCIHO will be imposed as of July 1, 2017.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Jan252017

“Way Mo” Autonomous Cars Coming Fast

Personal InjuryPersonal Injury Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

It’s a race to beat all races:  several car makers, including Ford, General Motors, Volvo, BMW and Tesla are promising fully autonomous vehicles within the next five years. Not far behind the pack, Google recently renamed its own autonomous contender the “Waymo”, according to Bloomberg Tech. And Nissan is big in Japan with plans to have commercial, driverless vehicles up and running on its home turf by 2020.

Recently, the U.S. Department of Transportation (DOT) announced that 10 sites across the nation were chosen for the testing of artificially intelligent (AI) vehicles. Two of these are right here in California – at the Contra Costa Transportation Authority in Walnut Creek, and the San Diego Association of Governments.

So what does all of this mean for driver safety?

It’s still too early to tell. For now, the general public can rest assured that the DOT’s designated test sites are meant to be just that – test sites. Automakers running cars at these locations are expected to share test results and tech knowledge per a Federal Automated Vehicles Policy released in September.

Transportation Secretary Anthony Foxx explained:

This group will openly share best practices for the safe conduct of testing and operations as they are developed, enabling the participants and the general public to learn at a faster rate and accelerating the pace of safe deployment. 

Autonomous Vehicle Safety

Last May a driver was killed in Florida when his autonomously driven Tesla crashed into a truck. The National Highway Traffic Safety Administration though, recently concluded that Tesla was not at fault. NHTSA said driver-assist software for the vehicle performed “as designed”, and that drivers should still pay attention when behind the wheels of AI vehicles.

The feds investigated other AI crashes and found that many of these were because of “driver behavior factors”.

Overall, even the insurance industry is gearing up for safer highways and streets. Once autonomous vehicles really get rolling, the industry expects a decline in driver insurance premiums, though it also expects an increase in product liability revenue. The reason?

Drivers involved in crashes will sue each other less and less, and will instead turn to car makers to satisfy injury claims.

 

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Jan032017

Prop 65 Update: The Rules They Are a Changin'

Litigation AttorneyEnvironmental Litigation

 

Stephen T. Holzer

818.907.3299

 

Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, among other things requires businesses employing ten or more people to warn consumers if the business’ products contain a chemical scientifically shown to cause cancer or reproductive toxicity.

Prop 65 LawyerThe State maintains a list of such chemicals. Such warnings are delivered by placing “clear and reasonable” warning statements on the products, on product packaging, or on signs at retail establishments selling the products. Historically, the warnings were usually sufficient even if they were somewhat generic – e.g., “This product contains a chemical [our emphasis, for illustrative purposes only] known to the State of California to cause cancer or reproductive toxicity.”

New Prop 65 Rules

After 30 years of living under regulations implementing Proposition 65, the Office of Emergency Health Hazard Assessment (“OEHHA”) has promulgated a whole new set of regulations re clear and reasonable warnings designed in part to “make warnings more meaningful to the public.” 

The new regulations require, among other things, the warning specifically to identify the chemical(s) in question – e.g., “This product can expose you to lead [our emphasis] which is known to the State of California to cause cancer or reproductive toxicity.” The new regulations also provide for specialized warnings for certain industries. The specific warning language listed in the new regulations need not be used if affected businesses can show other language provides a “clear and reasonable” warning; but the safest thing for a business to do is to adopt the language in the regulations.

Businesses have until August 30, 2018 until the new regulations become effective but can operate under the new regulations immediately if desired.

Enforcement Actions

Proposition 65 can be enforced by the government, but if the state chooses not to take action after being notified that adequate warnings were not given, individuals may do so by acting as “private attorneys generals.” Businesses in violation of the warning requirements may face a civil penalty of up to $2,500 a day for the period of violation. Typically though, settlements are much smaller than this draconian amount.

A Prop 65 claim is a particularly difficult claim for a business to defend. The most common defense is to show that people exposed during a course of a lifetime to the chemical(s) at issue would not become ill because the levels of the chemical(s) are too low to do any harm. It is expensive to mount such a scientific defense, requiring the testimony of experts. Small to medium-sized businesses generally choose to settle because the financial burden of litigation is too great.

Although case law suggested that a litigation settlement would protect a party from further Prop 65 claims re the same products and associated chemicals placed at issue by the claim, the law was arguably not completely settled in this regard. The new regulations specify that court-approved warnings will shield the businesses involved in a particular claim from future claims over the same issues.

OEHHA provides extensive information about Proposition 65. Additionally, you can contact us with any questions.

Stephen T. Holzer is the Chair of our Environmental Practice Group and a business litigation attorney. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Dec292016

Employer Responsibilities re Mental Health Conditions

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

The Equal Employment Opportunity Commission recently issued a “User-Friendly Document” explaining the rights of job applicants and employees with mental health conditions. In doing so, the EEOC has confirmed that individuals with such conditions are protected from discrimination and harassment.

Employment Law Mental Health Disability

As noted, employers cannot fire, deny a job, deny a promotion or force an employee to take leave because of a mental health condition (there are exceptions when employees pose a “direct threat” to safety or cannot perform their jobs). The guidelines remind employers of the obligation to provide reasonable accommodations that would enable employees perform their jobs.

In our work advising and counseling employers, we often encounter employers who struggle with how to properly respond to disabled employees.

Whether it is an employee’s injury, mental health condition or stress, employers face confusion as to their legal obligations. Since failure to communicate and/or accommodate may sometimes result in costly litigation, we are providing a few basic guidelines to assist employers when facing similar issues.

Do not discriminate against employees with a mental or physical health condition:

Employers do not have to hire or retain employees in jobs they cannot perform, or employ people who pose a “direct threat” to safety (based on objective evidence, not merely myths and stereotypes). However, firing an employee or rejecting an applicant with a disability (whether physical or mental) is prohibited, unless the employee or applicant cannot perform the job with reasonable accommodation.

For example: Jane notified her employer she was depressed and needed two weeks off. Her employer believed depression was not a “real disease” and rejected Jane’s request without further discussion. When Jane failed to show up because of her condition, her employer fired her for unpermitted absence.

The employer’s actions in this scenario were potentially unlawful. When Jane gave notice of her mental condition and asked for accommodations in the form of time off, her employer was required to engage in an “interactive dialogue” (explained below) rather than rejecting her request for time off and then terminating her employment.

Even if you don’t believe an employee’s health condition and request for accommodation are legitimate, you must at least engage in an interactive dialogue. Under some circumstances (e.g., if the need for an accommodation is not obvious), you can ask the employee to provide reasonable medical documentation to confirm the existence of the disability and the need for reasonable accommodation.

Timely engage in “interactive dialogue” with the employee, even if the employee does not “officially” ask for accommodations:

This can be tricky. Under California law, an employer is required to initiate the interactive process when: (1) the employee requests an accommodation; or (2) the employer otherwise becomes aware of the need for an accommodation through a third party or by observation.

For example: Robert was cleaning a window when he fell off a ladder and hurt his hand. Emily, Robert’s supervisor, witnessed the incident. The next day, Robert came back to work with bandages on his hand. Robert never asked for an accommodation but was struggling with his usual manual tasks. As Robert never asked for an accommodation, Emily assumed Robert did not require one.

Emily assumed wrong. Since Emily witnessed the incident and saw Robert’s bandages she was on notice regarding his possible need for accommodations. Even if Robert did not need accommodations, it was Emily’s duty, as the employer, to engage in the interactive process with Robert to determine whether accommodations could be provided.

Even if the employee is not eligible for protected time off under the Family Medical Leave Act or California Family Rights Act, consider time off as reasonable accommodation:

Family and medical leave laws generally cover employers with 50 or more employees. However, even if you are not a covered employer, you may be large enough and must consider whether protected time off can be provided as a reasonable accommodation (See also 2 CCR 11065(p)(2)(M)).

Don’t rely on the undue hardship defense:

Generally, employers are not required to accommodate a disabled employee or applicant if the accommodation would cause an “undue hardship” to the employer. The term “undue hardship” generally means an accommodation that is unduly costly, extensive or substantial, or that would fundamentally alter the nature of the business’s operation. (See definition and factors to consider in 2 CCR 2 11065(r))

However, employers are advised to use the “undue hardship” defense narrowly and only when the accommodations might place extensive financial burden or would prevent the ongoing operation of the business. Further, employers should engage in the interactive dialogue before concluding an undue hardship exists.

For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time. (From California Department of Fair Employment Housing guidelines).

Keep an employee’s mental or physical health condition confidential:

Medical information that employers obtain regarding the medical or mental conditions or history of an employee or applicant must be maintained in separate medical files and kept confidential. The employee’s medical information may be discussed only under the following circumstances:

1. Supervisors and managers may be informed of restriction(s) on the work or duties of employees with disabilities and necessary reasonable accommodations; and

2. First aid and safety personnel may be informed, where appropriate, that the condition may require emergency treatment; and

3. Government officials investigating compliance are to be provided relevant information on request. (See 2 CCR 11069(g))

Document, Document, Document:

We cannot emphasize this enough. A little documentation can go a long way.

When you meet with an employee as part of the interactive process, prepare a written summary of the meeting and indicate the reasonable accommodation options discussed. If you decide to grant the employee’s request, document that as well. If you deny the employee’s request because of undue hardship, put that in writing and explain the reasons for the denial. You should invite the individual to further engage in the interactive process and keep the door open to other options. In fact, any change in accommodations should be in writing.

Bottom line:

A little communication and documentation can go a long way and prevent costly litigation. Don’t rely on stereotypes or your personal knowledge and beliefs when an employee requests accommodations or gives notice of medical or psychological conditions. Meet with the employee, discuss his/her restrictions and discuss possible accommodations, if necessary.

As always, if you have questions or concerns regarding your obligations as an employer, contact an attorney in our Employment Practice Group: 818-990-2120.

Sue M. Bendavid and Tal Burnovski Yeyni are  Employer Defense Attorneys at our Firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120