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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.

Tuesday
Dec202016

California Employer Compliance 2017

Lawyers for Employers

by: Lewitt Hackman's Employment Practice Group

818-990-2120

 

There have been significant changes to state and federal laws in 2016 affecting employers of all sizes and in many industries. We'd like to help our clients stay apprised of some of the more critical changes by reminding all of the important dates below. Except where otherwise indicated, new laws and regulations go into effect as of January 1, 2017.

 

Federal Minimum Salary Threshold

A federal court blocked the Department of Labor's Final Rule with an injunction in late November. As a result, the minimum salary threshold required for overtime exemptions that was to be met December 1, 2016 no longer applies. This may be a temporary reprieve for employers, as the DOL recently filed a Notice of Appeal.

In the meantime, employers should ensure they meet all state and local overtime exemption requirements.


Affordable Care Act

IRS Affordable Care ActUnder the Affordable Care Act, employers must provide employees forms 1094-B (Health Coverage) and 1094-C (Employer-provided Health Insurance Offer and Coverage to Employees) by March 2, 2017.

Information reporting via Forms 1094 and 1095 with the IRS is February 28, 2017 (hard copies) or March 31, 2017 (electronic filing). 

 

New I-9 and Immigration Protections

Employment I-9A new I-9 Form (Employment Eligibility Verification) was released in November. Employers must begin using the new form for new hires by January 22, 2017

Federal law prohibits employers from asking for additional documents other than those required by the I-9. A new California law (Senate Bill 1001) prohibits this practice as well -- violations may incur penalties of up to $10,000. 


California Fair Pay Act

Fair Pay EthnicityThe Fair Pay Act prohibits employers from paying employees of opposite sex different wages for substantially similar work. Any pay differentials must be based on seniority, merit system, quantity or quality of production, or other bona fide factors such as education or experience. Additionally:

Senate Bill 1063 amends and expands the different rates of pay prohibitions to employees of another race or ethnicity.

Assembly Bill 1676 clarifies that prior salary history cannot justify compensation disparities. 


Criminal Background Checks

Background Checks in CaliforniaCalifornia: Employers are prohibited from asking about arrests or detentions that did not result in a conviction, or about those incidents that have been judicially sealed or dismissed. Assembly Bill 1843 expands protections to protect job applicants with juvenile criminal histories as well. 

Los Angeles: Ban the Box, or the Second Chance Initiative, prohibits employers with ten or more employees from including questions about criminal history on job applications. Employers may ask about criminal history AFTER a conditional offer of employment is made to the applicant. There is a process involved regarding the consideration of such information, written notices, maintaining records; and notifications that must be included on all job posts. Read our Ban the Box blog for more information. 


Payroll, Wage Statements & Notices

Employee NoticesCurrently, employers cannot discriminate or retaliate against employees who are victims of domestic violence, sex assault or stalking – and cannot prohibit employees from taking time off to seek treatment or legal actions for these crimes. Assembly Bill 2337 now requires employers to provide written notice of their employment rights should they become victims of these crimes to all new hires and to other employees as requested. Employers are required to comply with the notice requirements when the Labor Commissioner develops a form notice, on or before July 1, 2017.

Employers who must notify employees of eligibility for federal Earned Income Tax Credits (EITCs) must also notify employees of California EITCs per Assembly Bill 1847.

Employers are not required to track hours worked for exempt employees on itemized wage statements. The clarification comes under Assembly Bill 2535.

Employees of Temporary Staffing Agencies must be paid weekly. Assembly Bill 1311 makes this law applicable to security personnel employed by private patrol operators who are also temp service employers, as of July 2016.


Single User Restroom Facilities

Restroom LawAs of March 1, 2017, single-occupant toilet facilities in any business or public building must be identified as "all gender" facilities with signage compliant with Title 24 of the California Code of Regulations. Single-occupant bathrooms have no more than one stall and one urinal. See Assembly Bill 1732.

 

Minimum Wage Hikes

Minimum Wage HikeCalifornia: Businesses with 26 or more employees must pay a minimum wage of $10.50 per hour as of January 1, 2017. Employers with 25 or fewer employers must raise minimum wages to this rate on January 1, 2018

Local Ordinances: In unincorporated Los Angeles County, Los Angeles City, Pasadena and Santa Monica, employers with 25 or fewer employees must begin paying minimums of $10.50 per hour as of July 1, 2017. Employers with 26 or more employees were required to start paying a rate of $10.50 per hour as of July 1, 2016; and will be required to pay $12.00 per hour as of July 1, 2017. (Click: Cty and County Wage Rates for more specific information.) 

 

Sick Time

Sick Leave CaliforniaCalifornia: As of 2015, employers in California must provide 24 hours of paid leave per year for employees who work at least 30 days per year. 

Local Ordinances: In Los Angeles County, employers must provide 48 hours of paid sick leave annually. The time can be front-loaded every 12 months or accrued at the rate of one hour paid sick time for every 30 hours worked. This requirement is part of the Los Angeles Minimum Wage Ordinance, and went into effect last July for employers with 26 or more employees. For employers with 25 or fewer employees, the requirements must be implemented as of July 1, 2017


Arbitration Clauses

Senate Bill 1241 prohibits employers from requiring employees, as a prerequisite of employment, to arbitrate employment disputes under the laws of another state or in another state. This protection applies to all employees who primarily live and work in California. 

An exception to the new law applies to employees represented by an attorney when negotiating terms of an employment contract, including those containing forum selection and choice of law provisions. 


New California Employment Laws: Industry Specific Legislation

 

Janitorial Services

Janitor LawPer Assembly Bill 1978, employers of property service workers (janitorial) must keep records of all employees to include: employee names and addresses; start/stop times and all hours worked; wage rates for each pay period; ages of any minor employees; and conditions of employment – for three years. The law applies to janitorial employees, independent contractors and franchisees. 

Employers in this industry must register with the Labor Commissioner each year as of July 1, 2018. Cost of registration is $500.00.

The new legislation also requires janitorial staff and supervisors to undergo sexual violence and harassment prevention training every two years as of January 1, 2019


Agricultural Workers

Farm Worker LawAssembly Bill 1066 eliminates the one day of rest per seven days worked exemption for California's agricultural industry. Employers cannot require agricultural employees to work more than six days per week.

As of January 1, 2019, agricultural employers must provide overtime wages for more than 9.5 hours worked (or more than 8 hours starting January 2022); meal breaks; and meet other wage and working condition requirements.

Employers with 25 or fewer employees have an additional three years to comply with the criteria above. 


Private Education

Private School Minimum Salary ThresholdAssembly Bill 2230 requires a new minimum earnings test for private school teachers to be exempt from overtime:  salaries for these employees must be comparable to those offered to public schools in the same district or county. The new test is effective as of July 1, 2017

 

 

Salon Services

Salon Worker LawBusinesses licensed by the Board of Barbering and Cosmetology (BBC) are required to post notices regarding wage and hour laws and workplace rights as of July 1, 2017, under Assembly Bill 2437.

Another new law (Assembly Bill 2025) will require BBC schools to provide basic labor law education to license applicants.

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.

Thursday
Dec102015

Wrongful Termination & Disability Discrimination: Sarkisian Goes Head to Head With USC

Wage and Hour DefenseEmployment Litigation Defense

 

 

by Sue M. Bendavid

818.907.3220

 

Employment Discrimination Defesne

 

After a much publicized struggle with alcoholism and public firing by the University of Southern California, former head coach for the football team, Steve Sarkisian, has filed a lawsuit against the university.

According to several media outlets, one of the incidents that led to Sarkisian’s termination was the coach’s inability to speak properly at a USC pep rally in August.

The coach was slurring, and used an expletive while speaking onstage. In contrast, Sarkisian claims he had a few beers and took some anti-anxiety medication before the event. Allegedly, USC’s athletic director, Pat Haden, demanded Sarkisian sign a letter requiring the coach apologize to the team and the media, and to obtain counseling with a school therapist.

Sarkisian’s lawsuit against USC asserts claims for, among other things, breach of contract, disability discrimination, medical confidentiality violations, and wrongful termination. Sarkisian is seeking $12.6 million in contract damages as well as additional sums for “extreme mental anguish as a result of not only his wrongful termination, but also the manner in which he was terminated and the statements made about that termination by USC.”

The complaint also states that:

“Instead of supporting its Head Coach, Steve Sarkisian, when he needed its help the most, USC kicked him to the curb. Instead of honoring the contract it made with Steve Sarkisian, USC kicked him to the curb.”

Sarkisian and his attorneys further allege that Haden repeatedly and derisively said “Unbelievable” during a phone call in which Sarkisian asked for time off to get help for alcohol addiction, placed the coach on indefinite leave, and subsequently wrongfully terminated him.

Both state and federal law provide protections for disabled employees. California’s law is the Fair Employment and Housing Act (FEHA).  The federal law is the Americans with Disabilities Act (ADA).  Both FEHA and the ADA recognize that alcoholism is a form of disability. As noted by the Equal Employment Opportunity Commission (EEOC), employers must make reasonable accommodations for disabled employees if the accommodation will not result in an undue hardship on the employer.

Also, under California Labor Code Sections 1025-1028, certain employers must make reasonable accommodations for employees who ask for time off to enter rehab. And, the employer must maintain the employees’ privacy.

What Should Employers Do To Keep Workplaces Running Safely and Efficiently?

Lawyer for EmployerEmployers should remember that alcoholism is a disease recognized by the American Medical Association, and that this disease may entitle an employee to take time off from work. Not only may employees have leave rights under the ADA and FEHA, but also under other leave laws such as the Family and Medical Leave Act and the California Family Rights Act (for employers with more than 50 employees).

Employers who must terminate an alcoholic should do so with caution. They should consider all of the circumstances of the employee, including work history, performance records and other factors. Documentation of misconduct is key to helping prove that the termination was due to performance and not to a disability.

Employers should also establish policies and ensure all employees are aware of such policies prohibiting the use of alcohol or controlled substances while working.

 

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her by phone: 818.907.3220, or by email: sbendavid@lewitthackman.com.

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
Sep152015

Can Kim Davis Be Fired? What CA Employers Should Know About Religious Accommodations

Wage and Hour DefenseAttorney for Employers

by Sue M. Bendavid

818.907.3220

 

Last June, the U.S. Supreme Court determined that same-sex marriages are a fundamental liberty protected by the 14th Amendment of the U.S. Constitution – and that states must issue marriage licenses to same-sex couples.

Kim Davis, a county clerk in Kentucky disagreed, citing religious reasons for refusing to sign marriage licenses for gay couples. Davis even spent time in jail for her continual refusal to do so, which promptly led many to wonder, "Can Kim Davis be fired?"

The short answer is no. Davis was elected – she can either resign, be impeached, or finish her term. But if she were NOT a public official chosen via election, merely an at-will employee for a private company…could she be fired then? What if she worked to sell gowns in a bridal shop here in California?

The answer then becomes a little more complicated.

Federal Laws & Religious Discrimination

Many employers know that Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in the workplace. But some employers will not know that the same federal law also prohibits job segregation – an employee like Davis refusing to perform duties because of religious beliefs might be protected from being forced to take another position, such as one with no customer contact, for instance.

Also, Title VII mandates accommodations when reasonable. Workers citing religious reasons for refusing to perform a task or conform to workplace rules (e.g. a bartender refusing to wear a revealing uniform, a healthcare worker refusing to be vaccinated, or a floral designer refusing to provide flowers for a same-sex wedding) may suggest or be offered workaround solutions.

If the requested accommodation does not result in undue hardships such as: additional excessive costs, safety concerns, decreased efficiency, or infringement on someone else's rights – the accommodation should be implemented by the employer.

State Protections for Employees

California's Fair Employment and Housing Act (FEHA) is similar to Title VII in principle – it also prohibits employers from discriminating against applicants and employees because of religious beliefs and requires reasonable accommodations to be made.

Under FEHA, an employer would have to show that there will be significant difficulty or expense should the employer make a religious accommodation.

Keep in mind, there may be reasons to terminate an employee, but employers should be sure those reasons are valid and not in violation of state or federal protections.

In Nava v. Safeway Inc., for example, employee Juan Nava was terminated for destruction of  company property one week after he admitted to being offended by and subsequently removing, a gay pride poster from an employee break room. Nava sued for wrongful termination.  Safeway responded with an anti-SLAPP motion moving to dismiss the case.  Safeway argued that the lawsuit sought to censor and interfere with Safeway’s right to freedom of expression.

The trial court decided for Safeway, but a Fifth Appellate District Court reversed – finding that (although it was a close call and Safeway might later prevail) Nava could also potentially prevail with his wrongful termination suit. Therefore, the Court allowed the lawsuit to proceed.

Employer Takeaway

So back to the question: What do you do with an employee like Kim Davis?

In California, you accommodate when you can because both state and federal laws protect the religious beliefs and practices of the employee.  Absent undue hardship, you cannot take adverse action, like cutting back her hours or denying her training opportunities.  Nor should you let other employees mock her for her beliefs or anything else.  

Accommodations may cost you time or money. But in the long run, it will be less expensive than a discrimination suit.

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her via email: sbendavid@lewitthackman.com; or by phone: 818-907-3220 for more information.

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