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Entries in politics at work (2)

Monday
Oct242016

Employer Guide for Election Season

 

by Nicole Kamm & Tal Burnovski Yeyni

 

The 2016 presidential election season has provided fodder for often impassioned conversations among friends, family and co-workers.  While we may not always agree with all points of view, it is important to remember that conduct and discussion tolerated among friends or family may not be suitable in the workplace.

Employers should be mindful of the principal “dos and don’ts” when addressing political speech in the workplace

  • Do not encourage or discipline employees for their political activities.  California law prohibits employers from adopting or enforcing any policy that tends to control or direct employees’ political activities or affiliations. Employers further cannot coerce or influence employees to follow, or refrain from following, any particular line of political activity by threatening a loss of employment. Labor Code §§ 1101-1102.  

  • If heated discussions are an issue, remind employees about what constitutes acceptable conduct in the workplace.  Remind employees that all perspectives are entitled to respect, and that use of derogatory or abusive language will not be tolerated in a workplace setting.   

  • Comply with “time off to vote” rules in California. California law allows employees to take paid time off to vote (up to two hours) if employees do not have sufficient time outside of work hours to do so. Note, employees are allowed to take more than two hours to vote, but only two hours need be paid. 

Generally, time off to vote can be restricted to the beginning or end of an employee’s shift, whichever allows the most free time for voting and the least time off from the regular working shift (unless employee and employer agree otherwise). Finally, if employees know, or have reason to believe that time off to vote will be necessary, they are required to give notice to the employer at least two working days prior to the election.   

  • Post “time off to vote” notices. If not already in place (many pre-printed workplace postings reference time off to vote), employers must post an employee notice at least 10 days before a state-wide election – either in the workplace or where it can easily be seen by employees as they enter or exit their place of work. You can find a list of upcoming elections here, and sample notices here.   

 

Nicole Kamm and Tal Burnovski Yeyni are Employment Defense attorneys

 

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