harassment arbitration agreement

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.)

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.)

 

overtime pay

The Basis of California Employment Laws part 2

California Employment Laws – Part 2

Employers in large cities like San Francisco and Los Angeles sometimes violate employment laws through failure to pay the minimum wage, due to intentional employee misclassification, or because of sexual harassment, wrongful termination, or unfair employment practices that discriminate against protected classes. These issues can occur due to the complexity of employment laws with the federal government setting minimum standards for employment protections, yet states having the right to pass stricter laws that are more favorable to employees.  Three areas in which California employers must pay close attention to the state’s ever-changing laws include minimum wage, overtime and discrimination.

California’s Overtime Laws

Most employees are entitled to overtime compensation for working more than 40 hours a week, or more than eight hours in a day. However, California’s overtime laws contain numerous exceptions and exemptions from the basic understanding of these daily or weekly rules.

California Overtime Pay Rates

In California, the state overtime law requires a nonexempt employee to be paid 1.5 times their regular rate of pay for:

  • Hours worked in excess of 8 up to and including 12 hours in any workday
  • First 8 hours worked on the seventh consecutive day in a workweek
  • All hours worked in excess of 40 in a workweek

A nonexempt employee should be paid double the employee’s regular rate of pay when:

  • Hours worked over 12 hours in any workday
  • Hours worked over 8 on the seventh consecutive day of work in a workweek.

Employers must follow both state and federal overtime rules. Federal overtime requirements are contained in the Fair Labor Standards Act (FLSA). When differences exist between California and federal overtime rules, an employer must follow the rule that gives the most benefits to the worker. Typically, California law provides more benefits to workers.

If your employer wrongfully withheld overtime pay, you may have the right to:

Wage Hour Law California

  • Back pay
  • Damages
  • Attorney’s fees
  • State civil penalties
  • FLSA violation penalty up to $10,000

Overtime is based on the regular rate of pay, which is the compensation you normally earn for the work you perform. The regular rate of pay can include several different types of payments, such as hourly earnings, salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage.

Key statutes governing overtime pay in California include:

Discrimination

Employment discrimination refers to more than just hiring and firing and encompasses nearly every employment decision, from applications and interviews to assignments and transfers, promotions, pay, and benefits.  The major laws and classes they protect include:

In California, a discrimination claim can be filed either with the state administrative agency, the California Department of Fair Employment and Housing (DFEH) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims.

The California anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 5 and 14 employees (or one or more employees for harassment claims), you should file with the DFEH, as the EEOC enforces federal law, which only covers employers with 15 or more employees (20 or more employees for age discrimination claims). Employers with 15 or more employees (20 or more for age claims), you may file with either agency.

California law does not limit compensatory (emotional pain and suffering) damages or punitive damages (damages which punish the employer), but they are capped under federal law. Since California state law is more favorable than federal law in many areas, including recoverable damages, attorney’s fee, burdens of proof, and special employer defenses, many California attorneys choose to file employment discrimination cases in state court under state law only.

Minimum Wages

Effective January 1, 2018, California minimum wage rates increased to $11.00 per hour (from $10.50) for employers with 26 or more employees and $10.50 per hour (from $10.00) for employers with 25 or fewer employees. However, depending on where you work, your employer might be required to pay you more than the state minimum wage. The chart below outlines the change in minimum wage for each California locality in which an increase takes place in 2018.

California City / CountyEffective Date of Increase2018 Minimum Wage2017 Minimum Wage
BerkeleyOctober 1, 2018$15.00$13.75
BerkeleyOctober 1, 2018$13.25 (Employer youth
works & job training)
$12.00 (Employer youth
works & job training)
CupertinoJanuary 1, 2018$13.50$12.00
El CerritoJanuary 1, 2018$13.60$12.25
EmeryvilleJuly 1, 2018$15.60 (56 or more
employees)
$15.20 (56 or more employees)
EmeryvilleJuly 1, 2018$15.00 (55 or fewer
employees)
$14.00 (55 or fewer
employees)
Los AltosJanuary 1, 2018$13.50$12.00
Los Angeles (city)July 1, 2018$13.25 (26 or more
employees)
$12.00 (26 or more
employees)
Los Angeles (city)July 1, 2018$12.00 (25 or fewer
employees)
$10.50 (25 or fewer employees)
Los Angeles (county)July 1, 2018$13.25 (26 or more
employees)
$12.00 (26 or more
employees)
Los Angeles (county)July 1, 2018$12.00 (25 or fewer
employees)
$10.50 (25 or fewer employees)
MilpitasJanuary 1, 2018$12.00$11.00
MilpitasJuly 1, 2018$13.00$11.00
Mountain ViewJanuary 1, 2018$15.00$13.00
OaklandJanuary 1, 2018$13.23$12.86
Palo AltoJanuary 1, 2018$13.50$12.00
PasadenaJuly 1, 2018$13.25 (26 or more
employees)
$12.00 (26 or more
employees)
PasadenaJuly 1, 2018$12.00 (25 or fewer
employees)
$10.50 (25 or fewer
employees)
RichmondJanuary 1, 2018$13.41 without benefits$12.30 without benefits
RichmondJanuary 1, 2018$11.91 with benefits$10,80 with benefits
San FranciscoJuly 1, 2018$15,00$14.00
San JoseJanuary 1, 2018$13.00$12.00
San LeandroJuly 1, 2018$13.00$12.00
San MateoJanuary 1, 2018$13.50$12.00
San MateoJanuary 1, 2018$12.00 (non-profit)$10.50 (non-profit)
Santa ClaraJanuary 1, 2018$13.00$11.10
Santa MonicaJuly 1, 2018$13.25 (26 or more
employees)
$12.00 (26 or more
employees)
Santa MonicaJuly 1, 2018$12.25 (25 or fewer employees)$10.50 (25 or fewer employees)
SunnyvaleJanuary 1, 2018$15.00$13.00

Experienced Employment Law Guidance in California

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.)

 

disability discrimination

EEOC Alleges ADA Disability Discrimination California Health System Hospital Provider

ADA and Disability Discrimination

EEOC Alleges Dignity Health Fired Longtime Employee with Vision Loss in Violation of ADA

On July 12, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dignity Health, a healthcare company headquartered in San Francisco and operator of a medical center in Redding, California.  The EEOC claims the company violated federal law when it refused to provide accommodations to allow a 10-year employee to return to work after she suffered a sudden loss of vision, and instead fired her by selectively applying a previously unused vision requirement.

According to the EEOC’s investigation, Alina Sorling worked as a food service technician in Mercy Medical Center’s cafeteria for over ten years, performing tasks that included cashiering, grilling, cleaning and stocking. A severe illness left her with vision loss and Sorling took an unpaid leave of absence to rehabilitate and learn non-visual techniques necessary for independent living. According to the EEOC report, Sorling successfully mastered everyday tasks such as cooking in her own kitchen and proficiency with knife skills. Therefore, Sorling sought to return to work and informed her employer of multiple accommodations that she or the California Department of Rehabilitation could provide to allow her to perform the duties of her job. Making unsupported assumptions about safety and her capacity, Dignity Health unilaterally rejected the suggestions, and cited a 20/40 vision requirement when they fired her in June 2015 – even though they had never administered a vision test in the ten years she had worked there.

Americans with Disabilities Act (ADA)    ADA disability discrimination

Americans with Disabilities Act  – The ADA prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. As it relates to employment, Title I of the ADA protects the rights of both employees and job seekers. The ADA makes it unlawful to discriminate against people with a disability, a record of a disability, or who are regarded as having a disability. Further, the ADA requires employers to provide reasonable accommodations to employees absent an undue hardship.

In this case, the EEOC filed suit in U.S. District Court for the Northern District of California after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s lawsuit seeks lost wages and expenses, front pay, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future. Speaking specifically of the case and disability discrimination, William Tamayo, the EEOC’s San Francisco District Office Director remarked, “Instead of allowing her (Sorling) to demonstrate her abilities, Dignity Health excluded her due to fixed assumptions about her disability and limitations. Congress enacted the ADA to combat exactly this type of injustice.”

According to the EEOC release, Dignity Health is the fifth-largest health system in the United States and comprises more than 60,000 caregivers and staff, delivering care to communities across 21 states. Dignity Health is the largest hospital provider in California and operates Mercy Medical Center in Redding, where Sorling worked for ten years before she was fired.

Questions about Disability and Discrimination

Should you have questions about ADA or disability discrimination don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

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

Court House California

SCOTUS Strikes Down Union Dues Paid by Nonconsenting Government Employees

Agency Fees – Background

In Janus v. AFSCME, Counsel 31, Mark Janus, a child-support specialist with the State of Illinois Department of Healthcare and Family Services, challenged the constitutionality of the public-sector agency fee arrangement created by Abood v. Detroit Bd. Of Ed., 431 U.S. 209 (1977). Mr. Janus argued that the “agency fees” or “fair share fees” deducted from his paychecks by the American Federation of State, County and Municipal Employees (AFSCME) constituted compelled political speech in violation of his First Amendment Rights.

Reversal of Abood v. Detroit Board of Education Decision (1977)

The U.S. Supreme Court’s (SCOTUS) decision in this case overturned 41 years of precedent set by Abood, where the Court previously held that public-sector unions could collect an agency fee from employees in union-represented bargaining units who opted not to become members of the union. Because all employees in such units are represented by the union and covered by the collective bargaining agreement regardless of union membership, Abood permitted unions to collect a fee to help cover the costs of collective bargaining and other services, as long as the fee did not support the union’s political and ideological activities.   agency fees - employment law California

In a 5-4 decision, the Court held that “States and public-sector unions may no longer exact agency fees from nonconsenting employees… [as this] procedure violates the First Amendment.” The decision was authored by Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Gorsuch. Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor, filed a dissenting opinion.

The majority understood that dollars are fungible, and that therefore all fees required by public-sector unions are a matter of speech. The majority rejected the argument that the “free rider” problem discussed in Abood justified burdening the First Amendment rights of employees who object to supporting the union financially. Writing for the majority, Justice Alito stressed the importance of rectifying the unconstitutional burden placed on public-sector employees. “It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue…”

Impact of SCOTUS Decision

The bottom line of the Janus decision is that neither agency fees nor any other payment to a union may be deducted from a nonmember’s wages unless the employee affirmatively consents to pay. This decision immediately affects 22 states and D.C., all of which have “fair share” laws on the books authorizing public-sector unions to collect agency fees from non-union employees who fall within the union’s collective bargaining unit. It remains to be seen how public sector unions will adapt to smaller member-pools in the short run and the need to encourage new members in the long run.

California employers and employees alike may have questions about this most recent SCOTUS decision. 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.)