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Tuesday
Apr052016

Save the MAMILs - Cyclist Injury & Death Statistics

Injury AttorneyWrongful Death Attorney

 

by Thomas Cecil

(818) 907-3292

 

According to a recent government report, MAMILs (Middle Aged Men In Lycra) are the likeliest of all age groups and genders to be killed or seriously injured while riding a bicycle.

In its report to the US Congress last November (Pedestrian and Cyclist Safety), the General Accounting Office found that of the 743 cyclists who died and the estimated 48,000 who were injured in 2013, 87 percent of those killed were male with an average age of 44, and 83 percent of those injured were male with an average age of 33. Men between 55 and 59 “made up the largest number of cyclist fatalities”.

Although the report didn’t actually reference what the cyclists were wearing, it did confirm that more and more people, in fact over a million more, started riding or walking to work between 2005 and 2013. Riding a bicycle or walking to work clearly is not without risk. As the study points out, fatalities and injuries involving pedestrians and bicyclists remain relatively high while at the same time deaths and injuries from traffic collisions have fallen significantly.

The individual human tragedies are found in the numbers. In 2004, 727 cyclists were killed commuting to work and the annual number of deaths since then “has ranged between 623 and 786”. Cyclist injuries in 2004 were 41,000 and by 2013 were 48,000. Pedestrian deaths and injuries are worse:  4,675 deaths and 68,000 injures in 2004; 4,735 deaths and 66,000 injuries in 2013.

With respect to cyclists, the report notes that most traffic crashes that resulted in death in 2013 “occurred in urban areas, happened in clear weather conditions, and most frequently took place between 6:00 p.m. and 9:00 p.m.”  Unlike pedestrian deaths which occurred under similar circumstances, “more cyclists (405) died during daylight rather than in the dark.”  

Why are MAMILs and Others in Such Danger?

The study notes many possible factors, including increased walking and cycling trips, alcohol use, distracted driving, cycling and walking due to cell phone use, texting and eating. Another factor is the fact that roadways are built to accommodate cars rather than bicyclists and pedestrians.

As noted, as more and more people bike and walk to work, it is more likely that more cyclists and pedestrians will be involved in crashes. The report indicates, however, that when the numbers of cyclists and walkers in a particular area increase, the number of fatalities and injuries in that area decreases. Reasons given include drivers become used to seeing walkers and riders and change their behavior by driving more slowly. Thus more walkers and cyclists may actually improve safety and decrease deaths and injuries.

As also noted, distracted driving remains a serious threat to cyclists and walkers. In 2013 alone, 3,154 people died in motor vehicle crashes involving distracted driving. According to the report, 480 deaths “were pedestrians, cyclists, or other non-motorists.” 

With respect to road design, historically engineers designed roads meant to accommodate motor vehicles with wide straight roads often the goal. Unfortunately, the report notes, wide straight roads lead to faster traffic and speeding. A speeding driver has less time to react and the severity of the crash is much more likely to kill or seriously injure the cyclist or pedestrian.

So, what’s the solution?

Three Es of Safety for Pedestrians & Cyclists

1. Engineering:  better use of data to identify problem roadways and concentrations of cyclists and pedestrians; the use of highway design documents specific for cyclists and pedestrians such as the Pedestrian and Bike Guides, Urban Bikeway Design Guide and Designing Walkable Urban Thoroughfares: A Context Sensitive Approach.

2. Education:  collaborative education campaigns to educate the public on bike riding and walking safety along with officer training on pedestrian and cyclist safety and traffic laws.

3. Enforcement:  targeting areas with a high-frequency of crashes for law enforcement action.


(According to the Federal Highway Administration, there is typically a fourth “E” in highway safety, for “Emergency Medical Services” but it is not mentioned in this report.)

As bicycling and walking in urban areas is likely to only increase, and as more and more people look to biking and walking for exercise and recreation, drivers, city planners and walkers and bike riders will all have to learn to share the road. And remember, #SaveTheMamils.

Thomas Cecil is a Shareholder in 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.

Wednesday
Mar232016

Amended FEHA Regulations: Employers Required to Update Harassment & Discrimination Policies

Lawyer for EmployerEmployment Defense

 

 

by Nicole Kamm

818.907.3235

 

 

 

The California Fair Employment and Housing Act’s (FEHA) proposed amendments have been approved and go into effect April 1, 2016. All employers should review the regulations and update their policies.

In large part, the amended regulations incorporate and adopt recent changes in the law.  However, the amendments also add a lengthy new section (California Code of Regulations Section 11023) that imposes additional substantive requirements related to harassment and discrimination prevention and correction.

There are extensive changes to the law.  In this blog, we’ll take a look at three primary areas: 

  1. New harassment and discrimination prevention policy requirements
  2. New definitions concerning transgender applicants and employees
  3. Expanded national origin protections for applicants and employees 

Harassment & Discrimination: Mandated Policies & Procedures

FEHA now expressly states, “Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct”, §11023(a). Employers further “have an affirmative duty to create a workplace that is free from employment practices prohibited by the Act,” §11023(b).

In addition to distributing the DFEH-185 brochure, employers must develop written policies to prevent and correct harassment, discrimination and retaliation in the workplace.  Among other things, such policies must: 

  • List all current protected categories covered under FEHA;

  • Indicate that the law prohibits coworkers, third parties, supervisors and managers from engaging in prohibited conduct with the employee;

  • Create an employee complaint process to ensure complaints receive:
    • Confidentiality, to the extent possible
    • A timely response
    • Impartial and timely investigations by qualified personnel
    • Documentation and tracking for reasonable progress
    • Options for remedial actions and resolutions
    • Timely closures
    • Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor

  • Instruct supervisors to report complaints to designated company representatives;

  • Indicate that fair, timely and thorough investigations giving all parties appropriate due process will be conducted, and that reasonable conclusions based on evidence will be reached;

  • State that confidentiality will be kept to the extent possible, but not that the investigation will be completely confidential;

  • Indicate that remedies will be made should misconduct be found in the investigation; and

  • Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employers are further required to ensure employees are aware of these new or updated policies, either by providing printed copies to all employees with an acknowledgment form, sending the policy via email with an acknowledgment return form, posting the policies on a company intranet with a tracking system ensuring employees have read and acknowledged receipt, discussing the policies upon hire, and/or some other method that ensures employees receive and understand the policies.

Further, in any facility or establishment where 10 percent or more of persons speak a language other than English as their spoken language, employers shall translate the policy into every language spoken by at least 10 percent of the workforce.

Defining Terms: Gender-Related Characteristics

Gender Discrimination

While already a protected category, the amended FEHA regulations include definitions for “gender expression,” “gender identity,” and “transgender”: 

  1. Gender Expression: Gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.

  2. Gender Identity: A person’s identification as male, female, or a gender different from the person’s sex at birth, or transgender.

  3. Sex: Expanded to have the same definition as provided in Government Code §12926, which includes pregnancy, childbirth, medical conditions related to pregnancy, childbirth or breast feeding, gender identity and gender expression.

  4. Sex Stereotypes: Definition now includes an assumption about a person’s appearance or behavior, or ability or inability to perform certain kinds of work based on myth, social expectation or generalization about the individual’s sex.

  5. Transgender: A general term that refers to a person whose gender identity differs from the person’s sex at birth.  A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.  A transgender person may or may not identify as “transsexual.”

The amendments include reference to the fact that sexual harassment need not be motivated by sexual desire and “eligible female employees” under the pregnancy disability regulations include transgender employees who are disabled by pregnancy.

Employers should ensure they display an updated poster regarding pregnancy disability leave before April 1st. (See also the new DFEH Transgender FAQ Sheet.)

Expanded National Origin Protections for Applicants & Employees

The FEHA amendments incorporate sections of the California Vehicle Code to expand national origin protections.

Generally, it is unlawful for an employer to discriminate against an applicant or employee who holds or presents a driver’s licenses issued under §12801.9 of the Vehicle Code. 

Additionally, employers may require an applicant or employee to hold or present a driver’s license under the Vehicle Code only if

  1. Possession is required by state or federal law, or
  2. Possession of a driver’s license is required by the employer or other covered entity and is otherwise permitted by law.  

A policy requiring applicants or employees to present or hold a driver’s license may be evidence of a FEHA violation if the policy is not uniformly applied or is inconsistent with legitimate business reasons (i.e., a driver’s license is not needed to perform an essential function of the job).

Employer Takeaway

There is a lot to absorb – the amended Act runs nearly 90 pages with numerous edits and revisions. The key things to remember are these: 

  1. Update your harassment and discrimination policies as soon as possible (you must be compliant by April 1, 2016).
  2. Be aware of the new protections regarding national origin and gender.
  3. Make sure critical policies are in writing, employees read, understand and acknowledge receipt, and supervisors are trained on changes in the law and increasing employer obligations. 

Nicole Kamm 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.

Tuesday
Mar012016

Employers: Criminal History Inquiries May Get Tricky 

Lawyer for EmployersAttorney for Employers

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Employment Background ChecksProposed Amendment to California Code of Regulations 

Last week the California Fair Employment and Housing Council of the Department of Fair Employment and Housing (or, in short, the Council) announced its proposed amendment to the California Code of Regulations, aiming to substantially limit the use of criminal history information in employment decisions. 

The use of criminal background checks in the employment context has long been hotly contested. The argument against using the info is that it may have a disparate impact upon a protected class.

According to the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2012 Guidance on Criminal Background Checks, an employer's criminal record screening policy or practice may be biased against a Title VII-protected group (i.e., those protected for their race, gender, national origin, etc.). To avoid discrimination claims, employers must demonstrate that the policy or practice is job-related for the positions in question, and consistent with business necessity.

California state law also prohibits employers from asking job applicants to disclose information or otherwise obtain information about:  

  • Arrests or detentions not resulting in conviction;

  • Information concerning a referral to or participation in a criminal diversion program (a criminal diversion program is a work or education program as part of probation);

  • Convictions for most marijuana possession offenses more than two years old;

  • Convictions that have been judicially dismissed or ordered sealed pursuant to law per Labor Code §§ 432.7, 432.8

There are several exceptions to the prohibition, e.g., when the employer is required by law to obtain the information, the employer is prohibited by law from hiring an applicant who has been convicted of crime, etc. Labor Code §432.7.

New Rules for Background Checks?

 

The proposed amendment seeks to introduce regulation 11017.1 "Consideration of Criminal History in Employment Decisions."

It would set forth statutory limitations when seeking or considering information regarding various types of criminal history (as stated in Labor Code §§432.7, 432.8). This includes the limitations on state agencies from asking applicants about conviction history, until the agency has determined that the applicant has met the minimum employment qualifications (Labor Code § 432.9).  It also includes additional limitations on employers pursuant to local laws or city ordinances (e.g., San Francisco's Fair Chance Ordinance.)    

Most importantly, the proposed new regulation mirrors the EEOC guidance regarding criminal background checks. It states:

"Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions ... may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act], including, but not limited to, gender, race and national origin." 

Thus, if the policy or practice re criminal information creates an adverse impact, the employer has the burden of showing that the policy is justifiable because it is job-related and consistent with business necessity 

  • The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.  In order to establish the "job-related and business necessity" criteria, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least following factors:

a. The nature and gravity of the offense or conduct;

b. The time that has passed since the offense or conduct and/or completion of the sentence; and

c. The nature of the job held or sought 

  • Demonstrating that the policy is appropriately tailored to the job requires the employer to:

a. Show that any bright-line, across the board conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk, and that the convictions being used to disqualify have a direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the position; or

b. Show that the employer conducts an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.

  • Note that per the proposed rule, conviction disqualification policies that do not incorporate an individualized assessment and includes a conviction related information that is seven or more years old are subject to a rebuttal presumption that they are not sufficiently tailored.  

  • Finally, the proposed rule seeks to require employers to give employees notice before taking an adverse employment action regarding the disqualifying conviction and allow the individual a reasonable opportunity to present evidence that the information is factually inaccurate.  If the individual establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision. 

But that's not all. Even if the employer demonstrates that its background check policy or practice is job-related and consistent with business necessity, adversely impacted employees or applicants may make an FEHA claim if they can demonstrate that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice  – such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualifications or risk, without significantly increasing the cost or burden on the employer.

Hearing, "Sentencing" & Bottom Line for Employers

 

The Council will hold a public hearing regarding the proposed amendment on April 7, 2016. Employers or other interested parties may submit written comments relevant to the proposed amendment until 5:00 p.m. on April 7, 2016.  

If the amendment will be adopted employers who use information regarding conviction history in making an employment decision will have to review their policies or practices to determine whether they can demonstrate that their policies are job related and consistent with business necessity.    

 

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.

Tuesday
Feb232016

Money, Money, Money...Must Be Funny...in the Employee Training World

Lawyer for EmployersEmployment Defense Attorney

 

by Tal Burnovski Yeyni

818-907-3224

 

 

 

Score one for the employers this year:

An appellate court decision issued last month determined that an employee who chooses to partake in the employer’s voluntary training program is required to reimburse the employer for related expenses if the employee does not stay with the employer for a “reasonable period of time” following completion of the program.

In USS-POSCO Industries v. Case, UPI faced a shortage of skilled Maintenance Technical Electrical (MTE) workers. To address this, UPI decided to implement a Learner Program. Accordingly, UPI and the representative union in the workplace entered into a Memorandum of Understating (MOU) which stated: 

[D]ue to strong demand for [MTE workers] the Company needs to retain successful candidates as employees for a reasonable period of time in order to recoup the substantial $46,000 investment in their training. . .UPI may require candidates in the Learner Program to sign [a reimbursement agreement] that would require reimbursement for a portion of the training should a candidate voluntarily terminate employment within 30 months of completion of the Learner Program.

The employee (Floyd Case) signed a one page reimbursement agreement acknowledging UPI would pay his “wages, benefits and training expenses” while he was in the Learner Program, but there would be no guarantee participation in the program would ensure promotion, transfer, or continued employment with UPI.

He further agreed that if he was fired for cause or voluntarily left UPI within 30 months after completing the program, he would, absent a compelling hardship such as a serious injury or family death, refund $30,000 of the expenses of the training, less $1,000 per month of subsequent service at UPI.

Two months after completing the program, Case left UPI to work for a different company.  When Case refused to reimburse UPI, the company sued for breach of contract and unjust enrichment. Case cross-complained, asserting the reimbursement agreement was unenforceable and UPI had violated the Labor Code and other statutory provisions in seeking reimbursement. Both the trial court and an appellate court sided with the employer.

In its affirmation, the Court of Appeal noted: 

  • Labor Code provisions re employer payment of costs of business operations do not apply in this case, as the training program offered by UPI was strictly voluntary and optional.  

  • Case did not make any expenditure or suffer any loss in direct consequences of the discharge of his duties. Rather, it was UPI that fronted the costs of his voluntarily training.

  • Case had alternative options: He could have passed the MTE test without additional training or education, self-studied for the test, or completed the program and then passed the test. Case, however, chose the 3rd option “presumably because he would get training during the workday, would earn wages during the lengthy training period, and would obtain the training without any upfront cost and potentially without any cost at all.

  • Finally, the Court also held the reimbursement requirement was not an invalid restraint on employment. The employee “voluntarily agreed to participate in the training program and understood UPI would front all the costs of the program and expected reimbursement of training costs if he chose to leave within 30 months. This was an agreement concerning advanced educational costs. It did not restrain Case from working for a competitor or any other entity…” […] “Repayment of the fronted costs of a voluntarily undertaken educational program, the benefits of which transcend any specific employment and are readily transportable, is not a restraint on employment.

Bottom Line for Employers

This decision centers on one main issue – UPI did not require the employee to participate in the program. Rather, it offered the option to employees who sought employment as MTEs as UPI thought it would benefit as well. Accordingly, UPI was entitled to seek reimbursement from employees who did not stay following completion of the program. 

  • Don’t label a required training program as “voluntary” – that will not allow you to seek reimbursement.

  • Note that an employee’s participation in a mandatory training program might also count as hours worked.

Tal Burnovski Yeyni is an Employer Defense Attorney 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.

Thursday
Feb112016

Mile Marker: Google Beginning to Clear Legal Hurdles for Self-Driving Cars (but many more ahead)

Personal InjuryPersonal Injury Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

Self-Driving-Cars

 

Can self-driving vehicles (SDVs) use the carpool lane? That may be a legal question for another day, as SDVs still have barricades to overcome before moving to the fast lane and becoming available commercially for consumers. 

But the Federal Government opened the door – by giving serious consideration to, and taking the first steps in expanding, the previously unambiguous term “driver” – to include the Artificial Intelligence (AI) operating Google’s Self-Driving System, along with human motor vehicle operators.

The National Highway Traffic Safety Administration (NHTSA, or Administration) just responded to a November letter from Chris Urmson, Google’s Director of the company’s Self-Driving Car Project, which requested the interpretation of federal driving laws as they pertain to SDVs. Google hopes to make SDVs commercially available to the public by 2020, and that means making them compliant with Federal Motor Vehicle Safety Standards (FMVSS).

The NHTSA did grant some interpretations, but remains hesitant on others, citing a need for further Google SDV testing and further legislation in the future.

One reason for the Administration’s caution is that most FMVSS were written for vehicles of the past century, when all cars had human drivers sitting in the front left of a vehicle, with access to, and control of, steering and braking systems. The laws weren’t written to accommodate AI drivers or cars.

But the NHTSA did manage to favorably interpret some of Google’s questions re SDVs. They include:

1. Self-Driving Systems are drivers, in terms of certain operations like using turn signals and hazard signals; making transmission shifts; idling; parking and accelerating. 

2. Driver seatbelts may not be necessary, since the NHTSA interprets “driver” as the SDS in the case of Google’s proposed vehicle design: 

“It is possible that the provision as specifically written is not necessary for safety as applied to Google’s vehicle design, but Google has not demonstrated that in its present interpretation request.  FMVSS No. 208 would need amendment to clarify how a vehicle design like Google’s might comply with it.  One safety concern is that a human occupant could sit in any DSP [designated seating position], and that therefore the non-wearing of a seat belt by any occupant could create a safety risk.”  

3. Questions re Electronic Stability Control Systems (ESC) need further review, because the FMVSS mandate specific performance requirements for ESC systems. Though the NHTSA agrees that a Google-designed SDS is in fact the actual driver, the Administration feels a need to determine in future: 

“…how to evaluate the SDS control of the steering inputs, and whether and how to modify test conditions and procedures to address more clearly the situation of a vehicle with steering controlled entirely by an AI driver, with no mechanism for the vehicle occupants to affect the steering.”

A Futuristic Legislative Highway for Driverless Cars

Artificially Intelligent Vehicles

Self-driving test vehicles already cruise the streets. However, California DMV rules – where Google operates most of its prototypes – require human, licensed drivers to be inside with access to steering, brake and gas pedals. They must monitor the SDV’s operations at all times, and be ready to take control should technology fail or other emergencies arise.

Google’s November letter to NHTSA expresses concern that human error will make their completely autonomous SDVs unsafe should the humans try to override artificial intelligence.

The Administration acknowledged this concern, paving the way for years of further extensive testing and monitoring of vehicles completely controlled by AI with no human override capabilities.

But the proverbial genie is out of the bottle – Federal Rules will have to be modified to keep up with and include SDVs. There is much work to be done on both sides of this issue before we will have an SDV in our own garages – a prospect that is both scary and exciting for some of us.

 

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.

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