sexual harassment training laws

Pending Laws to Strengthen Sexual Harassment Training

Sexual Harassment Training and Prevention Bills Under Review by Governor Brown

The nationwide movement to increase awareness and strengthen women’s rights holds true in the California legislature. With an unprecedented amount of introduced bills dealing with various aspects of sexual harassment, we cover three below that made their way from chamber to chamber and recently to Governor Brown for signature.

AB-2079 – Janitorial workers: sexual violence and harassment prevention training

sexual harassment training lawsExisting California law provides that no employer may conduct any janitorial business without a valid registration and all employers must be registered with Division of Labor Standards Enforcement (DLSE). A business must register with DLSE and pay an initial application fee of $500 and an annual renewal fee of $500. AB 2079 expands requirements when applying to register as a janitorial business and expands sexual harassment prevention training. Specifically, this bill would require the Director of the Department of Industrial Relations to form an advisory committee to refine the recommendations of a different advisory committee on in-person sexual violence and harassment prevention training requirements for janitorial employers and employees. The Senate amended the original bill by changing the rate of pay for peer trainers from at least twenty five dollars an hour to at least twice the minimum wage; clarifying that training provided under the provisions of this law shall be in lieu of, and not in addition to, the requirements for training under the California Fair Employment and Housing Act; narrowing the measure to require employers to provide training to nonsupervisory training employees from the list of qualified organizations developed and maintained by the DLSE; and clarifying record keeping and registration requirements in existing law. AB 2079 was officially enrolled on September 10, 2018 and is awaiting Governor Brown’s signature.

AB 2338 – Talent Agencies; education on sexual harassment prevention, retaliation, and nutrition

Existing California law requires talent agencies to be licensed by the Labor Commissioner and to comply with specified employment laws applicable to talent agencies. Further, California regulates the employment of minors in the entertainment industry and requires the written consent of the Labor Commissioner for a minor to take part in certain types of employment. AB 2338 would require a talent agency within 90 days of retention, to provide educational materials on sexual harassment prevention, retaliation, and reporting resources and nutrition and eating disorders to its artists, would require those educational materials to be in a language the artist understands, and would require the licensee, as part of the application for license renewal, to confirm with the commissioner that it has and will continue to provide the relevant educational materials. Talent agencies would also have to retain, for three years, records showing that those educational materials were provided. AB 2338 would require, prior to the issuance of a permit to employ a minor in the entertainment industry, that an age-eligible minor and the minor’s parent or legal guardian receive and complete training in sexual harassment prevention, retaliation, and reporting resources. The bill would further require a talent agency to request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services. This bill would make it a violation of existing laws for a talent agency to fail to comply with the bill’s education and permit retention requirements and would authorize the commissioner to assess civil penalties of $100 for each violation, as prescribed. AB 2338 was enrolled by the legislature and presented to the Governor on September 6, 2018.

AB 3082 – Sexual harassment materials to IHSS providers and recipients

sexual harassment training laws

Existing California law establishes the In-Home Supportive Services (IHSS) program, administered by the State Department of Social Services and counties, under which qualified aged, blind, and disabled persons receive services enabling them to remain in their own homes. Existing law requires a prospective IHSS provider to complete a provider orientation at the time of enrollment that includes, among other things, the requirements to be an eligible IHSS provider, a description of the IHSS program, and the rules, regulations, and provider-related processes and procedures under the IHSS program. AB 3082 would require the Department of Social Services, in consultation with interested stakeholders, to develop, or otherwise identify, standard educational material about sexual harassment and the prevention thereof to be made available to IHSS providers and recipients and a proposed method for uniform data collection to identify the prevalence of sexual harassment in the IHSS program. The bill would require the department, on or before September 30, 2019, to provide a copy of the educational material and a description of the proposed method for uniform data collection to the relevant budget and policy committees of the Legislature. AB 3082 was approved by the legislature on September 5, 2018.

California Employment Law

Leading California employment lawyers at Kingsley & Kingsley will continue to monitor these bills until Governor Brown takes action. In the meantime, if you have any questions about California’s wage and hour laws, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

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Notable Workplace Harassment Bills Passed by the Legislature

Sexual Harassment Bill – AB 1867

On August 24, 2018 AB 1867 was passed by the California General Assembly and is awaiting signature by Governor Jerry Brown. If signed by Governor Brown, AB 1867 will add Government Code section 12950.5 to the Fair Employment and Housing Act (FEHA) and would require employers of 50 or more employees to maintain internal records of complaints alleging sexual harassment for five years after the date the complainant or any alleged harasser leaves the company—whichever date is later.

Existing law requires California employers to maintain anti-harassment policies that inform employees of the complaint process available to them. The new law would permit the state Department of Labor to seek an order compelling any employer to comply with the record-keeping requirement and mandate that records of the complaints alleging sexual harassment must be maintained for the employment-plus-five-year period. AB 1867 defines an “employee complaint” as one filed through the employer’s “internal complaint process.”

Unenforceable Contracts That Waive a Right to Testify – AB 3109  harassment arbitration agreement

Also awaiting Governor Brown’s review and signature is AB 3109, which would void any contractual provision that waives a party’s right to testify about criminal conduct or sexual harassment by the other contracting. As it relates to workplace harassment and similar situations, this bill declares that any settlement provision that would prevent a person from testifying about criminal conduct or sexual harassment in a judicial, administrative, or legislative proceeding is void and unenforceable, so long as the person was required or requested to appear at the proceeding. This provision requires that the person appears and testifies pursuant to a subpoena or court order in the case of a judicial proceeding, or in response to a written request in the case of an administrative or legislative hearing. In other words, a person who signed a settlement agreement to refrain from speaking about certain matters would not be free to breach that confidentiality by voluntarily showing up and speaking at a public hearing. While this bill will not outlaw non-disclosure agreements, it will limit their scope so that victims and witnesses could never be prevented from testifying in legal or legislative proceedings when asked to do so.

Prohibition of Mandatory Arbitration Agreements – AB 3080

The Legislature passed AB 3080 on August 27, 2018. This bill would outlaw mandatory arbitration agreements between businesses and employees or independent contractors, and thus ensure that harassment complaints get aired in public lawsuits instead of private arbitrations. Per the Senate’s analysis of AB 3080, This bill addresses two legal tactics, commonly used in relation to employment contracts, that can be and have been exploited to silence victims and witnesses of workplace sexual harassment: (1) the inclusion of non-disparagement clauses; and (2) forcing workers to sign mandatory arbitration agreements. As to the first tactic, this bill tries to limit abuse of non-disparagement agreements by making it unlawful for employers to prohibit workers from disclosing an instance of sexual harassment, opposing an unlawful practice, or participating in any investigation relating to harassment or discrimination. As to the second tactic, since current federal case law strongly favors enforcement of mandatory arbitration agreements, even when used to keep allegations of sexual harassment from becoming public, California cannot outlaw or discriminate against such agreements. Instead, this bill ensures that California workers who sign agreements to waive their rights to any particular forum or procedure for dispute resolution do so voluntarily and that those who elect not to sign such agreements are not subjected to retaliation as a result.

California Employment Law

Leading California employment lawyers at Kingsley & Kingsley will continue to monitor these bills until Governor Brown takes action. In the meantime, if you have any questions about California’s wage and hour laws, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

california employment law

CA Legislature Considers Expansion of Employee Rights

California Employee Rights

Both houses of the California Legislature are currently evaluating bills designed to expand rights of California workers. The current law-making session continues a trend of an increasing number of bills introduced to protect employees, especially in the areas of harassment, retaliation and the ability to file claims against employers. The employment lawyers at Kingsley & Kingsley continuously monitor changes in California employment law and will provide more insight as bills such as the five below wind their way through the legislative process.

AB 1870 – The California Fair Employment and Housing Act currently specifies employment and housing practices unlawful, including discrimination against or harassment of employees and tenants, among others. Existing law authorizes a person claiming to be aggrieved by an alleged unlawful practice to file a complaint with the Department of Fair Employment and Housing within one year from the date upon which the unlawful practice occurred, unless otherwise specified. This bill would extend the above-described period to 3 years for complaints alleging employment discrimination, as specified. The bill would make conforming changes in provisions that grant a person allegedly aggrieved by an unlawful practice who first obtains knowledge of the facts of the alleged unlawful practice after the expiration of the limitations period, as specified. Important to note, this bill is not meant to revive lapsed claims.

SB 224 – This bill would include within the elements in a cause of action for sexual harassment when the plaintiff proves, among other things, that the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party. The bill would eliminate the element that the plaintiff prove there is an inability by the plaintiff to easily terminate the relationship. The bill would include an investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment. Under existing law, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging violations of specified civil rights. This bill would also make the department responsible for the enforcement of sexual harassment claims.

SB 1038 – Existing law prohibits discrimination and harassment in employment based on certain factors, including race, religious creed, gender, or sex. Existing law prohibits discharging or discriminating against a person who has opposed any practices prohibited by these provisions or has filed a complaint, testified, or assisted in any proceeding for a violation of these provisions. SB 1038 would impose personal liability under FEHA for retaliating against a person who has filed a complaint against the employee, testified against the employee, assisted in any proceeding, or opposed any prohibited practice.

SB 1300 – SB 1300 would enact the following actions:  1) amend FEHA by expanding an employer’s potential liability, 2) prohibit a release of claims under FEHA or a nondisclosure agreement (with certain exceptions) in exchange for a raise or a bonus or as a condition of employment or continued employment, and 3) prohibit a prevailing defendant from being awarded fees and costs in certain circumstances, and 4) authorize an employer to provide bystander intervention training, as specified, to their employees.

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SB 1343 – The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employer’s knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.  SB 1343 would expand sexual harassment prevention training requirements to employers with five or more employees and would require that Department of Fair Employment and Housing (DFEH) materials be made available in multiple languages.

California Employment Law

Leading California employment lawyers at Kingsley & Kingsley will continue to monitor bills that expand employee rights as they are heard in their chambers of origin and cross over into the other chamber and ultimately to Governor Brown. In the meantime, if you have any questions about California’s wage and hour laws, contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469

sexual harassment

Sexual Harassment in California

The Primary Laws that Define Sexual Harassment in California

California law prohibits sexual harassment of all types in the workplace and goes as far as requiring employers to train supervisors on how to prevent and deal with sexual harassment. At the state level, the California Department of Fair Employment and Housing (DFEH) sets forth and enforces sexual harassment laws. California regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. Prohibited actions include but are not limited to the following behavior:

  • Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.
  • Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual.
  • Physical conduct: touching, assault, impeding or blocking movements.
  • Offering employment benefits in exchange for sexual favors.
  • Making or threatening retaliatory action after receiving a negative response to sexual advances.

Quid Pro Quo vs. Hostile Work Environment

Under the California Fair Employment and Housing Act, sexual harassment in employment takes two forms: quid pro quo (literally, “something for something”) harassment and hostile work environment harassment.

Quid Pro Quo Harassment

Quid pro quo harassment occurs when a supervisor requires a subordinate to submit to sexual advances by threatening the subordinate with an adverse employment action, such as a bad review, demotion, or termination. These kinds of situations can be expressly communicated or implied, and usually take one of two forms:

  • An offer – The employer or supervisor offers a job benefit—like a raise or a promotion—in exchange for some kind of sexual conduct on the part of the employee.
  • A threat – The employer or supervisor makes a threat of a work-related punishment—like a demotion, pay reduction, or termination—unless the employee gives in to the employer or supervisor’s sexual demands.
    The threat or offer can be either express or implied, meaning the mere discussion of sexual acts or behavior that could lead to sexual acts can suggest an offer or threat.

Quid pro quo harassment can only be committed by a supervisor, manager, or another employee who is in a position to take some tangible employment action against the victim. Coworkers who are on equal footing and who demand sexual favors are not engaging in quid pro quo harassment. However, they may be responsible for creating a hostile work environment as described below.

sexual harassment california

Hostile Work Environment

Hostile work environment sexual harassment occurs when the victim’s work environment is made hostile, offensive, oppressive, intimidating, or abusive due to repeated “pervasive” sexual harassment. Unlike quid pro quo harassment, any employee can create a hostile work environment. Because conduct must be “pervasive,” there usually must be more than one instance of unlawful conduct to create a hostile work environment. To make a case under this theory, victims must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. Also, the harassing conduct doesn’t have to be specifically targeted at an individual. In other words, one employee who observes another employee engaging in sexually harassing conduct may have his own claim of hostile environment sexual harassment.

California courts have laid out several factors to determine the degree of pervasiveness of the sexual harassment, including:

  • Nature of the conduct – California courts look at the degree of offensiveness of the behavior. Generally, acts like physical touching are more offensive than unwelcome verbal or written abuse. The more offensive the conduct, the less often it needs to occur to be considered “pervasive.”
  • Frequency – California courts consider how often the offending conduct occurred. A daily occurrence of sexual harassment is more likely to constitute “pervasive” behavior than acts that happen once a month or less.
  • Number of days – California courts count or approximate the total number of days over which all of the offensive conduct occurs.
  • Context – California courts look at the context in which the sexually harassing conduct occurred. Some situations may mitigate the degree of pervasiveness or offensiveness of the sexual conduct.

Suing for Damagers

Employers, supervisors, and coworkers can be liable to the victim for several types of damages. In actions under the Fair Employment and Housing Act, victims may seek:

  • Compensatory damages
  • Emotional distress damages
  • Punitive damages
  • Attorney fees and costs
  • Injunctive relief

What to do if you are a victim of sexual harassment

There are numerous steps to take if you are the victim of sexual harassment. First, make sure you document the actions taken against you and report it to the both your supervisor and appropriate human resources staff member.  If no action is taken, you should consider seeking out an employment lawyer who can guide you through the regulatory process and associated timelines. For example, under the Fair Employment and Housing Act, a claim of unlawful sexual harassment must be filed with DFEH within one year of the unlawful conduct. If a right-to-sue letter is issued by the DFEH, employees then have one year to bring a civil lawsuit. To assert a sexual harassment claim under Title VII, employees have 300 days from the date of the unlawful act to bring a claim with the Equal Employment Opportunity Commission (often called the “EEOC”). If the EEOC issues a right-to-sue letter, the employee must file their civil lawsuit within 90 days, or they could lose their right to sue the harasser.

California Employment Lawyers

An attorney can advise you on your alternatives including whether the conduct you experienced in the workplace amounts to sexual harassment. The lawyers with Kingsley & Kingsley located in Los Angeles, California have a wealth of experience fighting for victims of sexual discrimination and harassment. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email here.

Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

erisa arbitration

Ninth Circuit Affirms Denial of Motion to Compel Arbitration of ERISA Action

ERISA Arbitration - Claims

Bottom Line

The U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s opinion that the University of Southern California could not compel arbitration of ERISA claims brought by its employees despite the fact that the parties entered into a broad arbitration agreement.

Background - ERISA Arbitration

In Munro v. University of Southern California Allen Munro and eight other current and former USC employees participate in both the USC Retirement Savings Program and the USC Tax-Deferred Annuity Plan ("plans"). In this putative class action lawsuit, the employees alleged multiple breaches of fiduciary duty in administration of the Plans.

Each of the individual employees was required to sign an arbitration agreement as part of his/her employment contract. The nine employees signed five different iterations of USC’s arbitration agreement. Consistent among the various agreements is an agreement to arbitrate all claims that either the employee or USC has against the other party to the agreement. The agreements expressly cover claims for violations of federal law. In their putative class action lawsuit, the employees sought financial and equitable remedies to benefit the plans and all affected participants and beneficiaries, including but not limited to 1) a determination as to the method of calculating losses, 2) removal of breaching fiduciaries, 3) a full accounting of Plan losses, 4) reformation of the plans, and 5) an order regarding appropriate future investments.

ERISA arbitration - California lawyers

USC moved to compel arbitration, arguing that the employee agreements bar the employees from litigating their claims on behalf of the plans. USC also requested the district court to compel arbitration on an individual, rather than class basis because the parties did not specifically agree to class arbitration. The district court denied USC’s motion, determining that the arbitration agreements, which the employees entered into in their individual capacities, do not bind the plans because the plans did not themselves consent to arbitration of the claims. USC appealed the decision.

Ninth Circuit

On July 24, 2018, the Ninth Circuit affirmed the district court’s denial of a motion to compel ERISA arbitration claim brought by the current and former USC employees. The Ninth Circuit focused on the fact that the action was brought on behalf of the retirement plans and their participants and not on behalf of the individual employees. The court compared this particular ERISA action to a qui tam claim, and used a prior case for comparison (U.S. ex rel. Welch v. My Left Foot Children’s Therapy). In Welch, the Ninth Circuit similarly found that a qui tam claim did not fall within the scope of an arbitration clause. Accordingly, the court held that the arbitration clauses, which required employees to arbitrate their own claims against USC, could not be “stretched” to apply to ERISA claims brought by the employees on behalf of the retirement plans.

California Employment Law

With significant penalties in effect for ERISA violations, California employers should remain vigilant and informed to ensure compliance with the various employment laws enforced by the Labor Department. Should you have questions about federal laws such ERISA, or any of California's labor laws, don’t hesitate to contact experienced California employment lawyers at Kingsley & Kingsley. Feel free to contact us online or call us toll-free at 888-500-8469.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

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California Court Rejects De Minimis Doctrine for Off-the-Clock Work

On July 26, 2018, in a long-awaited decision, the California Supreme Court rejected the applicability of the Fair Labor Standards Act’s “de minimis” doctrine to California wage and hour law.

Background

The issue in Troester v. Starbucks was whether the federal Fair Labor Standards Act’s (“FLSA”) de minimis doctrine applies to claims for unpaid wages under certain provisions of the California Labor Code. For decades, the de minimis doctrine has been applied in the federal wage and hour context to excuse payment of wages under the FLSA for insubstantial or insignificant periods of time.

On August 6, 2012, Douglas Troester, a former shift supervisor at a Starbucks location, filed a lawsuit against Starbucks in state court in Los Angeles, California. Mr. Troester filed his lawsuit on behalf of himself and a proposed class of all non-managerial Starbucks employees in California who performed  certain tasks associated with closing stores from mid-2009 to October 2010. According to Mr. Troester, after he initiated the software’s close store procedure, he activated the alarm, exited the store, locked the front door, and walked his coworkers to their cars in compliance with Starbucks’ policy. 

Legal Path   

A U.S. District Court judge granted summary judgment to Starbucks based on the de minimis doctrine as developed under the FLSA, under which small amounts of work time may be disregarded in determining non-exempt employee compensation. Over Mr. Troester’s 17 months of employment with Starbucks, the district court calculated that his unpaid time for store closing tasks totaled less than 13 hours, or just over $100 in unpaid compensation at the applicable minimum wage. To determine whether the doctrine applies in a given case, the federal courts look to “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Under the FLSA test, federal courts have held that up to 10 minutes of work time might qualify as de minimis.

When that decision was appealed to the Ninth Circuit, the federal court deferred to the California Supreme Court, certifying the question of the applicability of the FLSA’s de minimis doctrine to claims for unpaid wages under California law.

California Statutes and the “de minimis” Doctrine

First, the California Supreme Court first ruled that California had not adopted the FLSA’s de minimis doctrine. It reasoned that California wage/hour law is more protective than the FLSA and explicitly requires that employees be paid for “all hours worked.”

Working Off the Clock

Second, the court stated that although California has a general de minimis rule that is a “background principle of state law,” the rule is not applicable to the facts presented by Mr. Troester because California law does “not allow employers to require employees to routinely work for minutes off-the-clock without compensation.” The court acknowledged that some extremely limited form of the de minimis doctrine might be applicable to wage/hour claims but held that it was not applicable in this case.

Compensating Employees for Time Spent on Irregular Activities

The court expressly declined to decide whether it would be appropriate to require employers to compensate employees for the time spent on activities that are fleeting or irregular. In a concurring opinion, Justices Kruger and Grimes elaborated on certain instances where the de minimis doctrine arguably should apply, such as when employees have to turn on and log onto their computers at the start of a shift or address a computer glitch, check their schedules off-hours, or have to respond to a quick customer question after they have clocked out. In such cases, they acknowledged the administrative difficulty in capturing this time might justify applying the de minimis doctrine.

Rounding of Work Hours

The court also addressed rounding practices, which both add and reduce time. The court noted that California law allows for employers to minimally round employees’ actual time punches, even after this decision, as long as rounding does “not result, over a period of time, in the failure to compensate the employees for all the time they actually worked.”

California Employment Lawyers
California employers must maintain compliance with both federal and California wage and hour laws year-round. This means understanding when those laws are similar and when differences exist. This also means knowing which legal provisions are most favorable to employees. Should you have questions about federal or California’s wage and hour laws don’t hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers if you have questions about any of California’s existing employment laws.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)